Disputes Tribunal of New Zealand

Negligence / Consumer Guarantees Act 1993 (CGA) / Applicant purchased some sound equipment from a seller advertised on Respondent’s website / Applicant did not receive the goods / Applicant later discovered seller had been removed by Respondent from its site / Applicant subsequently learned site had been subject of a phishing scam / Applicant claimed Respondent was negligent and or breached CGA by failing to inform him the seller was a scam / Applicant claimed $720.00 from Respondent / Held: Applicant’s claim in negligence was for economic loss not for loss or destruction of property, therefore outside Tribunal’s jurisdiction to hear claims in tort / Respondent’s contractual terms and conditions went to some lengths to explain Respondent was not responsible for things beyond its control / Scam was clearly example of something beyond Respondent’s control / Respondent provided services with reasonable care and skill / Claim dismissed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Respondent purchased a motorhome from Respondent for $20,000.00 / Respondent had paid $5000.00 / Applicant sought remaining $15,000.00 as well as $2,450.00 for the use of his workshop / Respondent counterclaimed $27,000.00 for repairs discovered after purchase; less $14,000.00 he acknowledged he owed to the Applicant / Held: motorhome was 37 years old when purchased / Onus on Respondent to carry out his own due diligence as was a ‘buyer beware’ situation / No misrepresentation / Not sufficient certainty of a binding contract between the parties about the use of the workshop / Respondent had breached the contract by failing to pay full amount for motorhome / Respondent liable for outstanding balance of $14,000.00 / Claim partially granted and counterclaim dismissed.

Contract / Applicants purchased property in Respondent’s development / Applicants expressed need for yard space, chose lot with most yard space / Specification documents sent prior to purchase included full-height wardrobes in each bedroom / In pre-settlement inspection, Applicants discovered useable yard space was significantly reduced by inset steps and inward gate swing, and large bulkhead was taking up significant space in one wardrobe / Applicants raised issues, Respondent stated contract allowed it to vary plans if required / Applicants claimed $2,000.00 compensation for wardrobe and $14,000.00 for yard, based on loss of volume and useable land area/amenity respectively / Held: Variations made by Respondent were of lesser quality than specified, and materially diminished value, use and enjoyment of the dwelling, in breach of contract / Applicants would not have purchased property had they known of these outcomes which were not remediable / Sums claimed were reasonable compensatio…

Contract / Consumer Guarantees Act 1993 / Respondent engaged Applicant to advocate for them in a personal grievance with their employer / Respondent contracts with its clients on a contingency basis until the end of mediation / All additional work performed on an hourly rate / Clients required to pay fees on an hourly basis if they terminate contract prior to an outcome / Respondent terminated contract prior to reaching outcome with employer / Applicant sought payment of invoice ($5182.50) plus debt collection costs ($1042.50) / Held: contract  formed between the parties, which included terms of engagement that were not 'harsh or unconscionable'/ Applicant failed to provide its advocacy services with reasonable care and skill / Respondent entitled to 75% fee reduction, $1035.00 / Applicant unable to be awarded disputed debt collection expenses / Claim allowed in part.

Contract / Applicant contracted Respondent to transport tractor-style ride-on lawn mower / Dimensions of mower given to Respondent incorrect / Transport costs increased from $1,219.00 to $2,871.09 / Applicant requested Respondent to halt delivery but Respondent continued with transport / Applicant sought refund of increased costs / Held: Respondent continued transport in circumstances where there was no clear agreement between parties about price / Applicant not entitled to full refund because he has received benefit of Respondent's services and cause of incorrect pricing was the Applicant / Respondent ordered to pay Applicant $400 / Claim allowed in part.

Contract / Applicant engaged Respondent to paint her rental property and paid $5,034.13 deposit / Before work started Applicant cancelled contract and asked for deposit back / Respondent refunded $4,114.13 but retained $920.00 / Applicant sought an order that Respondent was liable to refund full deposit / Parties’ contract stated that if contract was cancelled before work began, Applicant would be provided full refund / Respondent claimed situation was unusual, as Applicant had re-opened an earlier quote she had previously declined / Respondent claimed in this situation it should be entitled to charge for administration costs incurred / Held: Respondent did not indicate its original terms and conditions would not apply when Applicant accepted the re-opened estimate / If Respondent wished to change its terms, it needed to make this clear / Original terms and conditions therefore still applied / Applicant entitled to full refund / Respondent ordered to pay $920.00 / Claim allowed.

Consumer law / Contract and Commercial Law Act 2017 / Applicant purchased a vehicle from Respondent for $5,500.00 / Applicant told Respondent she would be driving around the country and asked if there was anything she should know about van / Respondent said van was in good working order / Applicant asked if she could take van for a pre-purchase inspection, but Respondent said her husband was a mechanic, so Applicant did not get an inspection done / Vehicle blew a head gasket while Applicant was driving around the country / Applicant claimed $4,800.00, comprising $4,279.80 for repairs plus other related travel costs / Held: misrepresentation to state vehicle was in good working order / Applicant entitled to understand it as a statement of fact in the circumstances / Applicant induced to buy vehicle without pre-purchase inspection / Applicant entitled to recover $4,279.80 spent on repairing vehicle / Applicant did not have evidence of other costs, so sum awarded was $4,279.80 / Claim all…

Contract / Consumer law / Applicant engaged Respondent to complete two horse truck boxes / Work had been started by another company, but person working on the job moved overseas before completion / Respondent completed work / Later, trucks failed their certificates of fitness due to cracks in the sub-frames the horse boxes were installed on, rendering them dangerous to use / Sub-frames had been completed by previous company / Applicant claimed $25,323.00 repair cost on basis Respondent should not have installed box on inadequate subframe / Held: Respondent under its contract with Applicant was not required or asked to check any of the work already carried out by previous company / Respondent’s contract was to complete the job using materials supplied / Respondent had no responsibility for design of the job / Reliance placed on previous company that its design and work was satisfactory for purpose intended / Not foreseeable that Respondent had duty or obligation to inspect sub-frame bef…

Property / Fencing / Fencing Act 1978 / Respondent's residential rental premises were engulfed in a fire / Fire also destroyed boundary fence between the parties' properties / Applicant claimed half the cost of reinstating back boundary fence and half the cost of new boundary fence / Held: Respondent liable for whole cost of making good the fence as it was destroyed as a result of actions of Respondent's tenants / Applicant only sought half of the cost and that was not considered further / Respondent liable to contribute half the cost / Applicant limited by amount claimed in her application / Respondent ordered to pay Applicant $4,145.75 / Claim allowed.

Contract / Contract and Commercial Law Act 2017 / Misrepresentation / Applicant purchased car from respondent  / Applicant claimed Respondent had misrepresented the car as it was rusty and could not be driven / Applicant relying on statements made by respondent about rust from 10 months prior to purchase / Held: No misrepresentation about rust but Respondent misrepresented car by saying it was drivable when he knew exhaust fumes were leaking into drivers cab through holes in floor / Respondent ordered to pay Applicant $250 / Claim allowed in part.

Misrepresentation / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicant purchased a van online / Van failed warrant of fitness check after purchase / Applicant took van back to Respondent who had provided warrant before purchase of van / Parties failed to agree on liability / Held: Respondent engaged in conduct that was likely to mislead and deceive by approving warrant / Respondent ordered to pay $7,236.67, refund for loss of van less salvage value / Claim allowed.

Contract / Consumer law / Fair Trading Act 1986 / Applicant operated holiday accommodation / Applicant used one of Respondent’s booking platforms /  Applicant sough to cancel the booking for one of its 21 apartments /  Respondent cancelled other non-related reservations / Applicant brought claim for $29,530.35, value of the reservations that Respondent had cancelled without authorisation / Respondent denied liability on the basis that no contract between it and Applicant /  Respondent said it was a support entity only and did not host or have access to the booking platform, which was managed by Respondent / Held: no separate contract between parties so no breach of contract / Agreement between international affiliate of Respondent and Applicant instead / No express reference to Respondent / Respondent was a company incorporated in New Zealand to provide support to its international affiliate / Insufficient evidence to establish any misleading or deceptive conduct by Respondent / Statem…