Disputes Tribunal of New Zealand

Negligence / Vicarious liability /  Respondent 3 rear-ended Applicant’s car whilst driving in employers vehicle / Applicant and insurer claim $1,773.04 in repair costs from Respondent 3, their employer’s company, (Respondent 2) and the employer personally, (Respondent 1) / Respondents deny causing the damage / Held: collision and resulting damage caused by Respondent 3 failing to stop / Respondent 2 vicariously liable / Respondent’s 2 and 3 must pay the Applicant’s insurer $1,773.04 / Respondent 1 not personally liable as they were not the driver at time of collision / Claim partially allowed.

Contract / Consumer Law / Consumer Guarantees Act 1993 / Applicant provided weekly garden and ground maintenance services to Respondent / Respondent terminated contract / Applicant claimed $28,437.56 in outstanding invoices / Respondent counterclaimed $30,000 for costs incurred for garden maintenance following termination of Applicant’s contract / Held: Applicant’s work done to a reasonable standard / Insufficient evidence to support claims of complaints made by tenants or owner about garden / Planting plan proposed by new gardeners not required by failure of Applicant to provide services with reasonable car and skill / Respondent’s failure to pay invoices within seven days was breach of contract / Respondent ordered to pay Applicant $28,437.56 / Claim allowed, counterclaim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicants purchased shade umbrella from Respondent / Shortly after installation, screws and washers needed replacing due to rusting / Respondent remedied issue / Applicants claimed to have continuing issues with umbrella, such as problems with lever, marks on canvas, tautness, small fray holes / Applicants claimed full refund / Held: issues with umbrella were not manufacturing defects / Issues were result of wear from use, and/or could be easily remedied / Applicants did not prove umbrella was not of acceptable quality / Claim dismissed.

Contract / Respondent engaged Applicant as contractor to provide coaching services / Contract had two-year term but allowed early termination with 6-weeks’ notice / Difficulties arose after Applicant commenced work; contract also disrupted by COVID-19 lockdowns / Respondent ultimately terminated contract, gave 6-weeks’ lump sum payment / Applicant claimed she had expectation of two-year contract, Respondent not entitled to terminate without good cause / Applicant claimed $22,672, including for income shortfall, loss of potential income, holiday pay / Held: Respondent entitled to terminate contract with notice, without cause / As independent contractor, Applicant not entitled to holiday pay / Respondent’s actions may have impacted Applicant’s ability to supplement income through subcontracting, as contract provided for; Applicant entitled to some compensation for lost income / Respondent ordered to pay Applicant $1,680 / Claim allowed in part.  

Contract / Applicant contracted Respondent to provide joinery for building project / Applicant claimed joinery not delivered within reasonable time / Applicant claimed $38,000.00 repayment / Held: amount claimed exceeds $30,000.00 jurisdiction of tribunal / Claim cannot be divided into two $19,000.00 claims as that is divided cause of action / Claim dismissed.

Tort / Conversion / Applicant stored motorbikes, vehicles and parts in First Respondent’s garage / First Respondent sold vehicles to Second Respondent without Applicant’s permission / Applicant claimed from First and Second Respondent $2,000.00 for money paid to recover two vehicles, $6,365.00 for motorcycle parts, and return of last motorcycle or its current value / First Respondent claimed he had asked Applicant to remove belongings / Held: no evidence First Respondent asked Applicant to remove belongings / First and Second Respondents liable for conversion of vehicles / Applicant unable to provide evidence of vehicle parts so Respondents cannot be liable for them / Second Respondent to return motorbike to Applicant / First and Second Respondents to pay sum of $2,345.00 to Applicant / Claim partially granted.

Negligence / Dog Control Act 1996 (DGA) / Applicant and Respondent were neighbours / Applicant’s dog escaped to Respondent’s property, was chasing Respondent’s sheep / Respondent had recently lost sheep to a dog attack / Respondent shot and killed Applicant’s dog / Five of Respondent’s sheep were injured by Applicant’s dog / Applicant claimed $3,000.00 for dog / Respondent counterclaimed $1,257.20 vet bill for sheep / Held: Applicant’s dog was running at large among Respondent’s stock / Per DGA, Respondent was therefore legally justified in shooting dog / Respondent not liable to pay $3,000.00 for loss of dog / Applicant liable for damage done by dog to Respondent’s sheep / Applicant ordered to pay Respondent $1,257.20 / Claim dismissed, counterclaim allowed.

Contract / Applicants purchased boat from Respondent / Respondent stated engine had done 420 hours and was serviced 8 months before purchase / Applicants tested boat on water but did not take it for pre purchase mechanical inspection / Upon first use of boat, engine lost all power / Boat was in fact serviced 16 months before purchase and motor hours were closer to 530-560 hours / Applicants claimed $8,556.88 for engine repair costs in damages / Applicants claim boat was misrepresented to them / Held: if boat had been serviced as represented, it is likely repair costs would only be $2,500 which Applicants accept they will pay / Applicants took considerable risk purchasing boat without inspection / Respondent is therefore liable to pay one third of remaining damages being $2018.67 / Claim partially granted.

Contract / Loan / Limitation Act 2010 (the Act) / Applicant made two loans to Respondent in 2013 / Respondent repaid most of first loan by 2015, then ceased payments / Applicant made repeated demands for repayment / Respondent repeatedly assured he would pay / In 2022, parties made new agreement that Applicant would forgive outstanding balance of first loan and interest / Respondent would begin repayments on second loan / Applicant claimed $27,577.77 in outstanding loan / Held: delay since Respondent’s first breach of loan agreement required consideration of the Act / Parties entered new agreement in 2022 / Agreement not barred by Act / Debt under later agreement remained due / Respondent ordered to pay Applicant $27,577.77 / Claim allowed. 

Contract / Applicant purchased car from Respondent for $8500 / Contract included clause allowing car to be returned for refund if inspected by mechanic within week of purchase and found to be not as advertised, requiring repairs over $500 / Applicant had car inspected, number of issues discovered / Applicant tried to return car / Respondent unwilling to give full refund, claimed issues were minor / Applicant claimed $8818 for full purchase price, cost of mechanical check, refund of filing fee / Held: car not ‘well maintained’ as advertised / Cam belt issues alone required repairs over $500 / Respondent repudiated contract by refusing to accept return of car / Applicant entitled to return car and receive refund / Applicant not entitled to compensation for mechanical check or filing fee / Respondent ordered to pay Applicant $8500 / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased curtains from Respondent / Applicant discovered uneven seams, holes and poor quality fabric used / Applicant asked for refund but Respondent stated Applicant should have raised the issue 48 hours of receiving curtains / Applicant claimed full refund $4,397.12 / Held: curtains not of acceptable quality, especially considering amount paid for curtains and representation of high quality product by Respondent / Lack of acceptable quality was a failure of substantial character / Respondent ordered to pay Applicant $4,397.12 / Claim allowed.

Consumer law / Fair Trading Act 1986 / Respondent approached Applicant about trimming trees on Applicant’s property / Respondent gave verbal quote of $50,000, offered to reduce price to $35,000 / Applicant accepted, Respondent began work / Applicant claimed staff intimidated her into paying $10,000 at end of first day / Work completed and agreed price paid in full / After seeking advice, Applicant believed value of Respondent’s work less than $5000 / Applicant claimed refund of $30,000 / Held: agreement was uninvited direct sales agreement / Respondent therefore obligated to provide agreement in writing and advise Applicant of right to cancel / Respondent breached obligation / Applicant materially prejudiced by Respondent’s breach / Applicant entitled to cancel contract and receive refund / Respondent ordered to pay Applicant $30,000 / Claim allowed.

Contract / Applicant sold car to Respondent for $5700 to be paid in three instalments / Respondent made only one payment of $500 / At Applicant’s insistence, Respondent returned car / Applicant listed car for sale, was contacted by third party claiming to have bought car from Respondent, was now registered owner / After discussion with police, third party took possession of car / Applicant claimed compensation for car / Held: Respondent failed to make agreed payments / Respondent notionally returned car, but had no rights to car when he did so / Applicant had neither the money nor the car, therefore Respondent remained liable under original agreement / Respondent owed Applicant balance of agreed sale price / Respondent ordered to pay applicant $5200 / Claim allowed.