Disputes Tribunal of New Zealand

Negligence / Parties were involved in a road collision / Truck had stopped because of debris on the road / Applicant’s car stopped short of the truck / Respondent was unable to stop in time and clipped Applicant’s vehicle, shunting her into a vehicle in front / Applicant’s vehicle was  damaged / Applicant’s insurer brought claim against Respondent for $12,198.48 / Held: Respondent breached Road User Rules by driving at such a speed that he was unable to stop short of car travelling ahead of him after it had stopped suddenly / Respondent was negligent when his car hit Applicant’s car / Applicant was not negligent and did not contribute to collision / Respondent ordered to pay Applicant’s insurer $12,198.48 / Claim allowed.

Property / Fencing / Fencing Act 1978 (FA) / Parties owned adjoining properties / No fence between the two properties, just several old fence posts from previous fence / Applicant wanted to build a new fence on the boundary / Applicant served fencing notices, and Respondents served a cross notice the following month / Applicant sought an order than Respondents were liable to pay $8,000.00 towards the cost of a new boundary fence / Disagreements regarding height and style of fence, and complications due to heritage status of Respondents’ property / Held: substantial compliance with FA requirements for serving fencing notice and cross-notice by both parties / Lack of adequate fence between the parties’ properties in terms of FA / Specific orders made for construction of fence / Parties to share cost of building fence ($12,650.00) equally / Respondents ordered to pay Applicant $6,325.00 for fence / Claim allowed in part.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a furniture franchise from Respondent / Applicant claimed Respondent misrepresented potential of business because there was not enough work in the area to earn money promised / Applicant claimed $30,000 to cover losses suffered as a result of lack of income in the business / Held: Respondent induced Applicant to enter into the contract by making a misrepresentation that the business would earn $4,000 plus per week / Sales were so poor that the business had to cease trading / Applicant suffered loss and is entitled for compensation / Respondent ordered to pay Applicant $30,000 / Claim allowed.

Consumer law / Fair Trading Act 1986 / Contract and Commercial Law Act 2017 / Applicant flew on domestic flight with First Respondent airline / Applicant’s checked-in bag was not returned until after a considerable delay / Applicant’s bag contained some perishable items including fish / Applicant said perishable goods had value of about $100.00 / Applicant claimed $2,700.00 for goods lost plus and time and inconvenience involved in retrieving bag / Claim brought against First Respondent airline and Second Respondent baggage handler company / Held: Applicant entitled to value of perishable goods / Applicant entitled to compensation for long period of delay and inconvenience / First Respondent failed to provide reliable and reasonable information to Applicant, amounting to misleading conduct / Applicant experienced waste of time and money as a result / Reasonable compensation for time and trouble caused by First Respondent’s misleading conduct was $750.00 / First Respondent ordered to pa…

Contract / Applicant provided Respondent estimate of $2,104.50 for renovation work, Respondent accepted and paid $1,052.25 deposit / When Applicant arrived on site, several factors increased scope of work / Applicant advised Respondent a price variation was needed, but no estimate was given / When work was completed, Applicant invoiced total of $8012.47, less deposit, leaving $6960.22 outstanding / As Respondent disputed amount charged, Applicant brought claim for balance of invoice / Held: pricing supplied by Applicant clearly stated it was an estimate, not a quote / Parties did not agree on a variation and scope of work did not change / Work proceeded on basis of original estimate / Final price may vary from an estimate by up to 15% / Due to costs incurred, reasonable to allow 15% variation / Respondent also liable for additional costs for cladding materials and finishing lines / Respondent ordered to pay $1726.25 / Claim allowed in part.

Insurance / Contract / Fair Trading Act 1986 / Applicant hired a truck from Respondent, selecting a zero excess insurance option / When Applicant returned truck, some damage was identified / Applicant was advised that his insurance did not cover that type of damage / Applicant paid the $2000.00 excess without prejudice and subsequently the repair costs were deducted from his credit card and the balance refunded / Applicant claimed he did not agree to the exclusion applied by the Respondent when he booked the truck / Applicant claimed a refund of the charged $2367.74 / Held: presence of an asterisk and a hyperlink on the online booking page was sufficient to alert customers to the existence of further terms / Common for insurance policies of all types to contain exclusions / Respondent gave adequate notice that the zero excess insurance option was subject to specific terms and conditions / Claim dismissed.

Contract / Applicant, a furniture manufacturer, was engaged by Respondent’s employee to make prototypes for chairs and bar stools / It was understood resulting items of furniture would be manufactured in part by Applicant and sold by Respondent / Applicant made prototypes and invoiced Respondent but had no response / Applicant later learned the employee he had been dealing with was no longer employed by Respondent, and Respondent was disputing liability for the invoice / Applicant claimed $3,450.00 unpaid invoice / Held: Respondent’s employee had, and was held out by Respondent as having, authority to make the arrangements in question with Applicant, and did so / Employee’s failure to record details of arrangement according to Respondent’s expectations or to obtain purchase orders did not make any difference to Respondent’s liability / Respondent bound by the actions of its employee / Respondent ordered to pay $3,450.00 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant contracted Respondent to paint his driveway for $2,800.00 / Applicant said the driveway was now slippery when wet / Applicant sought an order that Respondent was liable to pay $1000.00 to reseal driveway / Held: painting of the driveway was not done with reasonable care and skill and was not fit for purpose / Driveway was now slippery and dangerous when wet / Professional painter must be taken to understand that a consumer would like the resulting surface to be as safe as possible / Respondent ordered to pay $299.00, calculated cost of resealing driveway / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased a car via private sale from Respondent for $12,750.00 / Respondent advertised the car as a “great vehicle” that was “regularly serviced” / Applicant paid a deposit, then inspected and test-drove the vehicle, identifying no major issues / Within a month of purchase, major mechanical issues were identified / Applicant claimed issues were inconsistent with the vehicle having been “regularly serviced” by the Respondent and sought $7,794.39 for repairs / Held: not proven Respondent made false or misleading representations about the vehicle / Insufficient evidence to establish connection between alleged lack of servicing and problems that arose / Applicant had carried out thorough inspection of vehicle prior to purchase and neither he nor two mechanics noticed any symptoms to alert them of the major issues with car / Claim dismissed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Car did not have a WOF, but advertisement stated it would “have a fresh warrant” upon sale / After a test drive, Applicant agreed to purchase car without WOF for reduced price / Applicant took vehicle to mechanic, found repair would require removal of gearbox / Applicant claimed $3,000.00 refund of purchase price and $375.82 for cost to investigate issue / Held: no misrepresentation regarding WOF / More likely than not that faulty odometer had under-counted kilometers car had travelled / Representation that car had travelled 104,506km was therefore misrepresentation, which induced Applicant into the purchase / Insufficient evidence about extent of undercounting or effect it would have had on price / Respondent ordered to pay $500.00 for misrepresentation / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant paid $12,000.00 deposit to secure purchase of horse from Respondent / Horse remained with Respondent, apart from a period when it was leased to Applicant for a horse camp / When Respondent retrieved horse after camp, she claimed it was lame / Applicant decided not to proceed with purchase, requested refund / Applicant claimed $12,250.00 for purchase price and filing fee / Respondent counter-claimed $8,000.00 for reduced value of horse / Held: Applicant entitled to cancel contract and obtain full refund until final payment was made, according to agreement / Respondent failed to prove horse suffered laminitis caused during time she was under Applicant’s responsibility / Respondent breached agreement by failing to refund Applicant / Filing fee not recoverable / Respondent ordered to pay $12,000.00 / Claim allowed in part and counter-claim dismissed.

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,…