Disputes Tribunal of New Zealand

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to carry out a pre purchase inspection on a property she wished to bid on at auction / Applicant capped her bidding at $950,000.00 based on the report / Applicant claimed Respondent did not identify water damage which caused structural issues / Applicant claimed $30,000.00 for cost of remedial building work, report cost, and damages for emotional harm / Held: Respondent failed to show reasonable care and skill / Applicant's claim failed as loss was not proven as resulting from Respondent's failure / Applicant not suffered a loss as she lowered her bid based on the report / Claim for damages for emotional harm also failed / Claim dismissed.

Negligence / Applicant and Respondent were neighbours with a shared driveway / Respondent had a pile of scoria that was uncontained / Applicants property flooded on three occasions during storms as a result of debri washed down from the Respondents property / Applicant claimed $235.75 for costs of clearing the drain and $514.94 for two days' lost income / Held: Respondent was liable for part of the drain blockage but there were other contributory factors / Unreasonable for Respondent to compensate for two days' income / Respondent ordered to pay $493.22, drainlayer cost and half the amount claimed for loss of income / Claim granted in part.

Consumer Law / Consumer Guarantees Act 1993 (CGA) / Applicant contracted Respondent to repair blown head cylinder / Respondent provided quote for $3,000.00 / Respondent repaired head cylinder and carried out further repairs / Respondent charged Applicant $8,668.99 for repairs / Applicant claimed for return of $4,999.00 paid for unauthorised repairs / Held: repairs not authorised / Terms of contract were to only repair head cylinder and Respondent carried out further repairs without gaining authorisation from Applicant / Consumer not liable to pay more than reasonable price for service, s 31 CGA / Respondent to pay Applicant $4,643.99, being total amount minus reasonable cost of repair / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant bought car from Respondent / Applicant experienced issues with car: warning light came on, emitted smoke and burning smell / Respondent refurbished battery but could not identify any other issues / Applicant unhappy with outcome and refused to collect car from Respondent / Applicant claimed refund / Held: Respondent prepared to remedy and did remedy the fault / Applicant cannot reject car and claim refund / Applicant ordered to collect vehicle / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant operated museum which needs painting / Applicant accepted quote from Respondent who is a painter / Applicant paid $6,969 deposit to Respondent / Respondent did not complete work and was uncontactable / Applicant sought deposit refund / Held: Respondent repudiated contract by making it clear through his actions that he did not intend to carry out his obligations under the contract / Applicant entitled to cancel contract / Appropriate to grant relief of full deposit refund / Applicant received no benefit from minimal work from Respondent / Applicant incurred significant inconvenience as a consequence of Respondent’s failure to perform contract / Respondent ordered to pay $6,969 / Claim allowed.

Contract / Contract and Commercial Law Act 2017 / Applicant hired car from Respondent / Respondent's business was closed on date of return / Applicant instructed to return car to petrol station in front of Respondent’s premises / Car was damaged when Respondent picked it up / Respondent deducted $2,400 for the damage from Applicant’s bank account, without informing her / Applicant claimed repayment of $2,400 as she did not cause the damage / Respondent claimed car was not returned to their premises so Applicant remained liable for damage / Held: Applicant’s return of car per Respondent’s instructions deemed as delivering car to Respondent / Damage likely caused by third party after Applicant returned car / Clause in contract allowed Respondent to deduct monies for damage without proper process for dispute resolution or investigating liability to be disregarded / Respondent ordered to pay Applicant $2,400 / Claim allowed.

Consumer Law / Fair Trading Act 1986 / Consumer Guarantees Act 1993 / Applicant purchased flights and insurance from Respondent / Applicant suffered stroke while travelling and had to extend stay and pay for additional flights / Respondent declined insurance cover due to undisclosed pre-existing medical condition / Applicant claimed Respondent engaged in misleading or deceptive conduct and failed to exercise reasonable care and skill / Applicant claimed $21,095.98, being $10,514.44 medical expenses, $4,437.29 additional accommodation, $2,348.80 flights and $3,794.55 for accommodation / Held: Applicant failed to establish Respondent engaged in misleading or deceptive conduct or failed to exercise reasonable care and skill / Applicant did not disclose existing medical condition / Claim dismissed.

Building / Applicant contracted with Respondent for supply and installation of a window / Respondent engaged a building contractor to install window / Asbestos was found throughout the house / Applicant claimed $34,082.90 against Respondents / Held: building contractor did not act with reasonable care and skill when installing window / Respondent responsible for subcontractor’s work / Applicant failed to establish asbestos found resulted from installation of window / Applicant sought compensation above what was needed to put him in a position if the contract was not breached / Respondent ordered to pay Applicant $800.00 / Claim allowed in part.

Consumer law / Consumer Guarantees Act 1993 / Fair Trading Act 1988 / Applicant paid First Respondent $1399.00 for air conditioner unit for rental property / First Respondent said unit had 6-year warranty / Unit stopped working following year / Applicant sought remediation from Second Respondent, the distributor, but it refused to replace unit under warranty as it had no record of payment from First Respondent / Applicant claimed $1,999.00 / Held: First Respondent failed to provide unit of acceptable quality / First Respondent operated in misleading and deceptive manner by failing to pay for unit, which created difficulties for Applicant when she sought to enforce warranty / Second Respondent, as distributor, was liable to Applicant for quality of product, and engaged in misleading and deceptive conduct by telling Applicant she was not entitled to benefit of warranty / First and Second Respondents ordered to pay $1999.99 / Claim allowed.

Contract / Property Law Act 2007 / Applicants advanced $201,000.00 to their daughter and her Respondent partner towards property purchase / Applicants' daughter and Respondent separated and property was sold / Loans paid to Applicants / Applicants stated Respondent owed them an equity share in net sale proceeds / Applicants claimed $24,000.00 being half-share of profit, $3,375.00 legal fees and $416.97 interest / Held: Applicants had an agreement with their daughter and Respondent for Applicants to receive a profit-share on property sale / Profit-share agreement was legally enforceable contract / Respondent breached profit-share agreement by not paying any share to Applicants when property was sold / Applicants entitled to receive half-share profit / Applicants' claim for interest and legal costs dismissed / Applicants entitled to receive damages / Respondent ordered to pay Applicants $25,650.00 / Claim allowed in part.

Consumer law / Contract and Commercial Law Act 2017 / Applicant bought baby carrier from Respondent / Applicant claimed $180.00 refund as baby carrier was counterfeit / Held: representation made in advertisement that baby carrier was a genuine brand was incorrect / Respondent misrepresented baby carrier to Applicant / Applicant suffered a loss due to misrepresentation / Respondent ordered to pay Applicant $180.00 / Claim allowed.

Contract / Personal liability / Applicant paid Respondent's company $21,853.22 for electrical work and materials / Respondent did not do electrical work or provide materials / Respondent's company placed in liquidation / Applicant sought refund of $21,853.22 / Held: not enough evidence to find Respondent was personal liable for his company's debt to Applicant / Director and shareholder of company not personally liable for company debts, even where only one director and shareholder / Claim dismissed.