Disputes Tribunal of New Zealand

Contract law / Fair Trading Act 1986 (FTA) / Applicant paid Respondent’s company $38,000 to build a cabin / Cabin has not been finished, is unusable and does not have any council consent / Applicant claims Respondent either engaged in conduct that contravened the FTA or aided and abetted the company to contravene the FTA / Applicant claims $30,000 from the Respondent / Held: The applicants contracted with the Respondent’s company / On the evidence, more likely than not that the Respondents aided or abetted the company to contravene the FTA / Respondent is primarily liable for the company’s breach of FTA / Claim allowed, Respondent ordered to pay Applicant $30,000.

Contract / Misrepresentation / Applicant thought he had a 24-month contract with Respondent to use shared office premises / Applicant informed he could not use premises until next month and that it did not have a business lounge / Applicant claimed full refund of $1,836.92 / Held: Respondent made false and misleading statements and misrepresented the location and accessibility of the business lounge / Misrepresentation was an essential term of contract / Contract is cancelled and Respondent not entitled to claim any money after cancellation / Respondent ordered to pay Applicant $1,794.42 / Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased electric bike from Respondent / Applicant said assurance from sales staff that bike was able to charge phone a critical factor in purchase / Applicant discovered phone could not be charged from bike / Applicant claimed $13,484 refund and legal costs / Held: bike of acceptable quality and fit for purpose / No right to reject bike and contract remains binding / Claim dismissed.

Insurance / Disputes Tribunal Act 1988 / Respondent provided Applicant with cleaning services quote / Applicant claims Respondent's cleaner scratched copper sink in the bathroom during the trial clean / Applicant’s insurer seeks to recover damages / Applicant claims Respondent charged her three times the agreed price / Respondent denies liability for the scratch / Respondent claims additional pricing due to extra services involved in a first time trial and counterclaims $10,000.00 / Held: On balance of probabilities, Respondent’s staff caused the sink scratches / The Applicant’s insurer is entitled to recover the loss it indemnified / The additional costs the Respondent claims should have been included in the initial pricing / The Respondent must pay the Applicant’s insurer $1,277.00 / The Applicant’s insurer shall refund the Applicant’s excess fee / The Applicant must pay the Respondent $95 for the cleaning trial / Claim allowed / Counterclaim dismissed.

Contract / Applicant purchased new build property from Respondent / Respondent had not installed fibre optic cable in a conduit or pipe from the ETP to Home Distributor Box / Cable tight and likely to break without protection of conduit / Applicant claimed for cost of fitting conduit / Held: absence of conduit amounts to defect / Pipe or conduit required to meet standards expected for this new build / Not reasonable for Applicant to leave cable until it breaks as this could cause significant inconvenience / Respondent ordered to pay Applicant $4,500 / Claim allowed.

Contract / Respondent contracted Applicant to sell his house / Respondent presented with an offer to purchase conditional on finance being transferred from a foreign bank / Respondent accepted offer / Solicitors confirmed agreement was unconditional on the same day / Purchaser did not settle and Respondent cancelled contract / Respondent then listed his house with another agency / Applicant claimed commission of $28,000 / Held: Agency Agreement stated commission would become payable immediately upon contract becoming unconditional /  Respondent had initialled the section confirming he had been advised to seek legal advice about contents of agreement / Respondent had not put forward any evidence that Applicant had breached their obligations under the agreement / Respondent ordered to pay Applicant $28,000.00 / Claim granted.

Consumer law / Consumer Guarantees Act 1993 / Applicant enrolled dog in Respondent’s 4-week dog-training programme / Programme advertised as ‘full behavioural modification course’ / After dog returned to Applicant, behaviour briefly improved, but soon worsened / Arrangement included three follow up meetings, Respondent only attended one / Applicant claimed refund of $3,200 fee / Held: Applicant did not get anything approaching reasonable value for price paid / Applicant entitled to expect some reasonable and sustained improvement in dog / Respondent did not make himself available for follow up meetings / Respondent’s failure to meet consumer guarantees of a substantial character / Respondent ordered to pay Applicant $3,200 / Claim allowed.

Contract / Secondhand Dealers and Pawnbrokers Act 2004 / Limitation Act 2010 / In 2016, Applicant lent Respondent $800, advanced in exchange for pawning of Respondent’s car / Applicant never obtained possession of Respondent’s car, and Respondent never repaid loan / Respondent claimed $14,000 for repayment of loan, payment of contractual interest, cost of debt recovery and sale value of car / Held: Claim filed more than six years after debt fell due, therefore statute-barred / Claim dismissed.

Contract / Respondent contracted Applicant to kill and process a steer / Respondent claimed when he weighed the boxes, net weight was 231 kg / Applicant invoiced Respondent $1,458.20 (excluding interest) for the job including a processing cost of $1,008.00 plus GST, based on 480kg at $2.10 per kg / Charge was calculated on the carcass weight of the animal / Applicant sought payment of the invoice including interest ($29.16) / Held: Applicant provided services that he was contracted to provide / Unlikely the carcass weight of 480kg was incorrect / Figure was consistent with the size and age of the animal / Applicant's terms of the agreement did not empower him to charge interest on outstanding accounts / Respondent ordered to pay Applicant $1,458.20 / Claim allowed.

Contract / Applicant parked in Respondent’s carpark without paying fee / Respondent issued Applicant with breach notice charging them $65.00 / Applicant paid $1.50, being fee for 1 hour of parking / Applicant claimed fee was unenforceable penalty / Held: fee was enforceable penalty / fee was reasonable to protect legitimate interests of Respondent / Applicant to pay Respondent $63.50, being $65.00 fee minus $1.50 already paid / Claim dismissed.

Consumers Guarantees Act 1993 (CGA) / First Applicant bought CV joints from Respondent to install in a vehicle owned by Second Applicant / Respondent stated that Applicant could use the CV joints for Applicants motor vehicle / Second Applicant took motor vehicle to a mechanic who stated that CV joints were an incorrect fit for the motor vehicle / First Applicant claimed $1999.00 for the cost of the mechanics invoice / Held: CV joints were not reasonably fit for purpose / Respondent did not carry out services with reasonable care and skill / Applicants awarded partial refund / Respondent ordered to pay $678.13, Claim allowed.

Contract / Consumer Guarantees Act 1993 / Applicant contracted Respondent to make six bridesmaid dresses for $250.00 / Only four of the dresses were worn at the wedding / Applicant claimed dresses were poorly made and sought refund for all dresses, altercations costs and two replacement dresses / Held: Applicant failed to prove that  the dresses were defective or could not be remedied / Alterations were expected and formed part of the contract / Measurements were provided by bridesmaids / No evidence from Applicant to indicate dresses did not match measurements provided / Dresses sent to Respondent for alterations were pinned by the bridesmaids where the alterations were required / Applicant failed to provide any evidence of third-party alteration expenses or for two alleged replacement dresses / Claim dismissed.  

Contract / Consumer law / Consumer Guarantees Act 1993 / Applicant purchased phone from Respondent / Phone was faulty / Applicant was informed he was entitled to replacement, but when phone was sent back to Respondent, it was repaired instead of replaced / Phone still faulty when returned to Applicant / Phone sent back again, but Respondent refused to replace it, saying it had been repaired / Applicant did not see phone again / Applicant claimed $1469.30 refund plus $500 for inconvenience / Held: Respondent breached own terms and conditions by failing to provide replacement phone / Respondent also breached Consumer Guarantees Act by failing to repair phone within reasonable time / Replacement phone no longer of any use to Applicant, who had to purchase another phone in meantime / Damages for inconvenience not available / Respondent ordered to pay Applicant $1469.30 / Claim allowed.