Disputes Tribunal of New Zealand

Negligence / Parties were involved in vehicle collision / Respondent was attempting to merge into Applicant’s lane / Respondent’s vehicle came into contact with Applicant’s passing vehicle / Both vehicles suffered damage / Applicant and his insurer claimed $5,143.95 for repair costs / Respondent denied liability, claiming Applicant caused accident because he was speeding / Held: suggestion that Applicant was speeding was speculation / Although Respondent did take care for most of the manoeuvre, in a brief moment she failed to see Applicant’s oncoming vehicle / Location of damage to cars was consistent with Applicant’s account of how the accident happened / Respondent ordered to pay $5,143.95 repair costs / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Respondent painted roof of Applicants’ home / Applicants claimed paint started bubbling within weeks / Applicants claimed $24,856.39 for cost of roof strip and repaint and reimbursement of coating specialist advice costs / Held: photos clearly showed blistering paint across all roof surfaces, plus several areas where paint work did not appear to have uniform finish / Respondent did not provide services with reasonable care and skill / Expert witnesses did not agree on cause of blistering, but on either explanation Respondent failed to exercise reasonable care and skill / $24,856.39 reasonable compensation / Applicants gave Respondent opportunity to put issue right but it had not done so in reasonable period of time / Applicants entitled to cost of someone else doing the work / Reasonably foreseeable Applicants would need to seek independence advice as to cause of issues / Respondent ordered to pay $24,856.39 / Claim allowed.

Contract / Respondent leased commercial premises from Applicant / Respondent sold its business, and the lease was assigned to the new business owner / The parties’ solicitors reconciled outstanding rent arrears, which were deducted from the bond paid under the lease, leaving a small balance for Respondent to pay / Applicant later became aware of some unpaid rates outstanding from when Respondent occupied premises / Applicant claimed $3,674.10 as outgoings payable by Respondent under the lease, being $3,071.55 in unpaid rates and $568.55 in late payment fees charged by Council / Respondent claimed that the reconciliation done when the lease was assigned to the new business owner was a full and final settlement / Held: the reconciliation recording rent arrears and legal fees to be offset against the bond amount did not constitute a full and final settlement, as there was no clear statement to that effect or consideration on either side / Respondent ordered to pay outstanding rates of $3,…

Contract / Misrepresentation / Respondent sold her cell phone to Applicant for $700.00 / Prior to sale, Respondent represented by text that a  camera lens had a crack but camera still worked “perfectly fine” / When Applicant picked up phone she discovered camera did not work / Applicant contacted Respondent to cancel contract and request refund, but Respondent refused / Subsequent professional diagnosis, costing $60.00, identified phone was in need of significant repair / Applicant traded phone in for credit of $521.00 / Held: Respondent misrepresented condition of phone / Phone was not fit for purpose / Applicant entitled to be reimbursed for her loss, being $700.00 purchase price plus diagnosis charge of $60.00, less $521.00 credit / Respondent ordered to pay $239.00 / Claim allowed.

Contract / Carriage of goods / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / First Respondent transported three dogs (a mature dog, and two pups) belonging to the Applicant / Days later, the puppies contracted a virus / Applicant contended puppies contracted the virus when they were transported in the Respondent’s bus / Applicant contended Respondents did not provide a service of reasonable skill and care / Applicant sought compensation for vet bill and related costs / Held: not clear that the Applicant’s puppies contracted the virus whilst in the care of the First Respondent, and being transported / Unable to establish that it was more likely than not that there was a causal link between the transportation of the puppies and the puppies’ infection / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicants contracted Respondent to lay concrete at their home / Whilst laying concrete on the driveway concrete was splashed on to Applicants’ new garage door / Applicants attempted to remove splashes unsuccessfully / Respondent then attempted to remove splashes but left extensive swirls over the door / Applicants claimed for cost of replacing all the panels on the garage door / Held: Respondent liable to repair the door / Allowing concrete to splash on to the door was a breach of contractor’s duty of care to carry out service with reasonable care and skill / Applicants’ efforts to remove splashes were reasonable and did not detract from Respondent’s liability for allowing splashes to occur in the first place / Respondent ordered to meet entire replacement cost of the panels because the door was new / Respondent ordered to pay $2,587.50 / Claim allowed.

Contract / Credit Contracts and Consumer Finance Act 2003 / Applicant purchased a massage chair from Respondent for $4,090.00 / Purchase was made through credit card financing with an initial deposit of $690.00 / Later that evening, Applicant realised chair would not fit into his house / Next day, Applicant asked to cancel purchase / Respondent refused to allow him to cancel, relying on its terms and conditions, and offered a store credit / Applicant claimed $1,000.00 from Respondent, comprising a refund of his deposit and damages for his time and stress dealing with dispute / Held: Applicant gave written notice to cancel contract day after purchasing chair / Contract therefore cancelled and Respondent must return deposit / Respondent not proven that it incurred any expenses in connection with contract / Applicant cannot recover damages for time and stress in dealing with dispute / Respondent ordered to pay $690.00 / Claim allowed in part.

Consumer law / Applicants contacted Respondent for plumbing work / Applicants said they informed Respondent that they owned neighbouring houses, and Respondent needed to ensure it attended the correct one / Applicants received an invoice for Respondent’s attendance at different address / Different address was also owned by the Applicants / Applicants said Respondent went to the wrong house which did not have a plumbing issue / Respondent stated Applicant supplied the address they attended / Respondent’s plumber carried out requested plumbing work at that property / Applicants disputed payment of $211.38 invoice / Applicant sought a ruling on their liability / Held: Respondent receptionist’s evidence was credible regarding supplied address information / Respondent’s plumber carried out actions consistent with the instructions given by Applicants / Applicants ordered to pay $211.38 / Late payment and debt collector charges made by the Respondent were not permitted / Claim allowed in part…

Negligence / Parties were involved in vehicle collision / Differing accounts as to who was at fault / Applicant said he was driving straight in his lane when the Respondent’s car crossed directly in front of him appearing to have lost control / Respondent said she was driving straight in her lane when the Applicant indicated right and moved a bit into her lane as she was passing / Respondent said she took evasive action but in doing so lost control and spun across the motorway, hitting the front of the Applicant’s vehicle / Applicant and his insurance company claimed the losses resulting from the Applicant’s car being written off, $7269.95 / Held: evidence indicated Applicant made an unsafe lane change as he did not check adequately that the way was clear before entering the Respondent’s lane / Applicant’s actions caused the Respondent to lose control of her vehicle and that led to the resulting collision / Respondent was not liable in negligence / Claim dismissed.

Contract / Applicant completed repair work on Respondent's boat / Applicant invoiced Respondent but he did not pay / Account referred to Applicant's debt collectors but they were unsuccessful / Applicant claimed $4,748.54 made up of principle amount ($1,829.06) together with contractual interest amounting to $2,919.48 / Held: Respondent breached the contract / Respondent required to pay invoiced sum of $1,829.06 / Respondent not required to pay claimed interest / Respondent had no opportunity to accept or reject the terms, so not an agreed part of the contract / Discretion to award interest / Interest calculated as $329.45 / Respondent required to pay $2,158.51 in total / Claim granted in part.

Contract / Building / Fair Trading Act 1986 (FTA) / Applicant engaged First Respondent’s business to renovate a bathroom and ensuite at her house, to undertake remedial work on a sagging roof line, and to build a retaining wall / Total contract price was $123,276.85 / Partway through job, First Respondent sold business to Second Respondent / Ensuite was never completed / Claim in relation to ensuite resolved by settlement / Applicant claimed $25,400.00, being in part a refund of $21,424.50 paid for the retaining wall on the basis the work was unnecessary, plus cost for remedial work to the soffits / Held: Applicant’s evidence did not prove retaining wall was unnecessary / No dispute about quality of retaining wall itself / No breach of FTA by First Respondent / Insufficient evidence for claim regarding soffits / Claim dismissed.

Contract / Respondents sold their property to Applicant / Later, when Applicant was selling the property, a potential purchaser discovered renovation completed when the Respondents owned the property did not have a Code of Compliance (COC) / Applicant had two pending offers on the property / Applicant lost the higher offer and the other offer was reduced due to COC information /  Applicant agreed to sell the house without the COC or Certificate of Acceptance (COA) for a reduced value / Applicant claimed $30,000.00 from Respondent for loss of value of higher offer due to no COC and the final sale price / Held: Respondents accepted that they unknowingly sold the property to the Applicant without the required COC / That was an innocent misrepresentation / Applicant not entitled to claimed $30,000.00 / Applicant had opportunity to obtain a COA and decided not to / Applicant entitled to compensation that would rectify term that was broken had it been discovered at time of her purchase / Com…

Property / Personal property / Applicant claimed for personal property to be returned by Respondent / These items include a sofa, washing machine, and microwave / Held: Respondent provided evidence of payments made to Applicant for the specific items / Insufficient evidence to prove that Respondent's owe the Applicant for items / Claim dismissed.