Disputes Tribunal of New Zealand

Contract / Consumer law / Fair Trading Act 1986 (FTA) / When researching for investment options, Applicant came across website of First Respondent, an overseas-based business offering investment in shipping containers / Applicant decided to invest with Respondent for purchase of one container, transferred EUR2,186.64 / Applicant received regular statements from First Respondent / When Applicant sought to exercise a “buy back” option, he received some communication, but did not receive any payments from Respondent / Applicant suspected he may have been victim of a scam / Applicant claimed amount of his initial investment plus interest / Held: FTA did not apply, as Respondent was not a business based in New Zealand or carrying out business there / Contract between parties stated any dispute was to be determined in accordance with law of Respondent’s country / No jurisdiction to hear and determine claim / Claim struck out.

Consumer law / Consumer Guarantees Act 1993 / Applicant was engaged to do building work for Respondent / After first week, Respondent advised he was not happy with progress and Applicant withdrew from job / Applicant invoiced $4592.81 for hours worked / Respondent paid total of $1906.00, based on his calculation of what it would cost him to remedy claimed issues with Applicant’s work / Applicant claimed balance of $2686.81 / Respondent counterclaimed $4470.00, being refund of $720.00 and $3750.00 for 5 weeks storage necessary due to delay caused by Applicant leaving site after a week / Held: not all of Applicant’s work was carried out with reasonable care and skill / Extent of failure difficult to determine as no independent assessment was provided / 20% reduction of Applicant’s charges allowed as compensation for cost of remedial work / Insufficient evidence for Respondent’s counterclaimed storage costs / Respondent ordered to pay $1768.25 / Claim and counterclaim allowed in part.

Fair trade / Fair Trading Act 1986 / Applicant and Respondent were directors of a company / Respondent fraudulently provided a large number of false documents and was convicted on charges of using a document for a pecuniary advantage / Applicant claimed that the Respondent's fraudulent conduct resulted in their suffering financial loss / Held: Respondent considered as being in trade / Respondent's dishonest use of documents for pecuniary gain constituted misleading and deceptive conduct / Applicants suffered financial loss by reason of Respondent’s deceptive conduct / Respondent ordered to pay Applicants $30,000 / Claim allowed.

Property / Mistaken payments / Applicant sold a number of items online, and inadvertently provided Respondent’s bank account number to buyers / Buyers paid a total of $474.50 into Respondent’s account / At Applicant’s request, after learning of the errors, Respondent paid $300.00 to Applicant / Applicant claimed balance of $174.50 plus $40 for reversal fee paid by one of the buyers / Respondent counterclaimed $1,300.00 for stress and time off work to attend hearing / Held: in general, money paid by mistake is recoverable, provided circumstances are such that recovery is not unjust / Respondent obliged to pay sum mistakenly paid into her bank account, less some recompense for resulting time and trouble involved in dealing with matter / Reasonable sum for that time and trouble, which was relatively minor, was $100 / Respondent obliged to pay Applicant $115.00 / Claim allowed in part, counterclaim dismissed.

Consumer law / Contract / Applicant purchased phone through Respondent's website / Purchase price included trade-in value of Applicant's old phone / Estimated trade-in amount was $220.00 / When Applicant send his old phone in the trade-in value was reduced to $40.00 / Applicant claimed that undervalued his old phone / Applicant sought $418.00, based on a resale website estimate / Respondent claimed Applicant was given estimated trade-in value of $220.00 / Phone was then sent to a third party who discovered water damage and battery issues which lowered phone value to $40.00 / Held: not sufficient evidence that there was a breach of contract / Applicant given the option to accept or reject $40.00 offer / Claim dismissed.

Contract / Fair Trading Act 1986 / Applicant ran a vinyl fair at Respondent’s venue for many years / In 2022, Applicant exchanged emails with Respondent’s venue manager about booking the venue for dates in May and November 2023 / In August 2023, Respondent advised Applicant that the November date was no longer available / Applicant sought compensation for loss of revenue and other associated costs with the fair not proceeding in November / Held: agreement between Applicant and Respondent for use of the venue in November was a pencilled-in booking / A pencilled-in booking can be cancelled by either party at any time prior to it being confirmed / Applicant’s booking was not confirmed before Respondent cancelled it / Respondent not legally obliged to make venue available to Applicant on November date / Claim dismissed.

Consumer law / Building Act 2004 / Consumer Guarantees Act 1993 / Applicant bought new build home from Respondent in 2009 / Applicant claimed shower liner in ensuite shower had detached from the wall, therefore must not have been installed correctly / Applicant claimed $6,000.00 to fix shower / Held: claim was time barred as it was brought more than ten years since alleged failure / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased inverter from Respondent / Inverter overheated and could not be repaired / First Respondent declined Applicant's request for refund / First Respondent stated inverter was water damaged / Applicant claimed full refund / Held: insufficient evidence that watermarks caused the failure of inverter / Inverter was not of acceptable quality / Applicant entitled to refund / Claim against First Respondent dismissed as Applicant did not form contract with him / Second Respondent ordered to pay Applicant $588.33 / Refund reduced by 34 months of the 120 months expected life of the unit / Claim allowed in part.

Consumer law / Misrepresentation / Contract and Commercial Law Act 2017 / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicant booked tour with Respondent’s company for himself and his parents to travel to three European cities / Applicant was unhappy with tour and said Respondent failed to deliver what was promised / Applicant sought partial refund of $4920 / Held: Respondent did not make false or misleading representations about trip / Trip covered what was offered / One hotel room was not up to standard / Applicant was entitled to room appropriate for triple occupancy, but was given twin occupancy room with added rollaway bed / Certain parts of the tour were not provided with reasonable care and skill / Breach not of substantial character as parts of trip were delivered as promised / Appropriate to award damages in relation to hotel room and overall customer experience / Respondent ordered to refund Applicant $600 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a horse from Respondent / Applicant intended to develop the horse for dressage and show jumping events / Applicant declined to get a vet pre-purchase check / Applicant claimed after purchase that a pre-existing condition became apparent / Applicant claimed $24,155.06 on the basis that the horse was not fit for purpose due to pre-existing condition / Held: Applicant did not met the threshold in claiming the horse was not fit for purpose / Evidence by vets indicated horse could become an able jumping horse / No evidence found of pre-existing condition / Text messages suggested real reason for rejecting the horse was that the Applicant’s wife was not happy with the purchase / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to draw plans for their intended new home / Respondent did not deliver plans on time or addressed changes requested by Applicant / Applicant cancelled contract and sought refund of fees / Held: Respondent did not carry work with reasonable care and skill / Initial plans do not reflect brief / Plans exceeded Applicant's budget / Agreed timeline not kept and Respondent failed to respond in a timely and professional way / Applicant entitled to full refund of fees / Respondent ordered to pay Applicant $2,875 / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Fair Trading Act 1986 / Applicant booked a cruise with Respondent / Applicant cancelled booking two weeks before departure, believing Respondent had changed its Covid protection requirements from those it had advertised, resulting in no protective Covid policy at all / Applicant requested full refund of $15,212.50 / Respondent declined refund in reliance on its terms and conditions, which stated funds were non-refundable for cancellation within 90 days of departure / Applicant claimed $16,212.50, for refund plus $1,000.00 for cancelled flights, interest and mental stress / Held: Respondent did not breach contract / Applicant unable to prove that pre-departure screening or testing for COVID-19 for all passengers was a term of contract / Respondent provided services with reasonable care and skill / Respondent’s conduct was not misleading or deceptive / Claim dismissed.

Contract / Applicant purchased house from Respondent / After settlement, central heating found not to be working properly / Applicant paid for repairs which cost $396.75 / Problem not remedied so Applicant had gas valve replaced costing $908.50 / Held: agreement for sale and purchase agreement included gas central heating as a chattel in the sale / There was a warranty that central heating would be in reasonable working order on settlement / Fact central heating was not working soon after settlement was sufficient evidence to infer the problem existed on settlement day / Respondent ordered to pay Applicant $1,305.25 / Claim granted.