Disputes Tribunal of New Zealand

Contract / Property Law Act 2007 / Respondent was an independent contractor for Applicant’s insurance company / If a client terminates policy then Applicant would ‘claw back’ commission from independent contractors / Applicant claims $28,000 / Held: it is reasonable to imply a clawback clause in contract / Clawback clause is not a personal guarantee and is enforceable / Unable to proven Applicant contributed to cancellation of policies through mismanagement / Claim allowed / Respondent to pay $26,318.75 to Applicant.

Consumer law / Consumer Guarantees Act 1993 / Respondent installed waste water septic system in Applicant’s home / System began malfunctioning regularly / Applicant informed Respondent, who attended property several times to attempt to rectify issues / Majority of interventions to repair system were at Applicant’s expense of over $11,621.90 / Issues ultimately not rectified / Applicant claimed $22,121.90 / Held: septic system was not of acceptable quality, defects rendered system substantially unfit for purpose / Services provided by Respondent were not carried out with reasonable care and skill / Applicant entitled to cost of having failure remedied / Respondent ordered to pay Applicant $22,121.90 / Claim allowed.

Rehearing application / Applicant applied for rehearing on grounds due to he was not informed of the hearing date and attended the hearing via teleconference / Applicant also claimed there was confusion over the amount the Respondent owed / Held: Applicant participated fully in the hearing / Applicant was given an opportunity to confirm amount after the hearing / Rehearing not granted merely because the parties are unhappy with the decision / Not satisfied there was a substantial wrong or miscarriage of justice / Rehearing claim dismissed.

Contract / Parties signed a truck sale and purchase agreement / Applicant cancelled after signing / Deposit non-refundable under sale and purchase agreement / Dispute regarding whether there was agreement that the deposit could be refunded if applicant wanted to cancel sale / Held: new term of contract supersedes the old term / Not open to respondent unilaterally alter term back to originally agreed / Applicant relied on this undertaking and cancelled contract expecting full refund / Claim allowed, respondent to pay applicant $10,275.76

Contract / Consumer Guarantees Act 1993 / Respondents contracted Applicant to replace windows and doors in their villa / Contract price did not include repair work once removal and installation was underway / Applicant initially sought $30,000 from Respondents for outstanding balance of the contract price, variations invoice and interest / Applicant amended its claim to $14,727.00 after receiving $15,273.00 from  Respondents / Respondents counterclaimed $30,000.00 for overcharging and quotes for additional remedial work / Held: Respondents owed Applicant $9,542.32 for additional work and interest / Respondents entitled to $500.00 credit as Applicant failed to install flashings for  sunroom windows / Applicant not liable for replacement doors or damage to benchtop / Respondents ordered to pay Applicant $9,042.32 / Claim allowed in part / Counterclaim dismissed.

Contract / Property Law Act 2007 / Applicant leased part of a property from Respondents, including use of a barn / Applicant had lights installed in barn / Lease ended when Applicant had to leave town / Applicant authorised Respondents to remove belongings from barn and stored them / Applicant returned two years later to find lights had not been removed from barn along with his other belongings / Applicant sought return of the lights, or compensation of $2,093.00 / Held: lights were lessee’s fixtures / Applicant had right to remove lights while in possession of barn or during reasonable period after / Reasonable period longer than usual in unusual circumstances but had now expired / Lights had become lessor property / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased truck and trailer from First Respondent / Applicant alleged vehicle faulty in many respects / Applicant claimed $29,000 for various repairs / Held: Applicant has no legal basis to hold Respondent liable for quality or fitness purpose issues, even if proven, as this is a private sale / Applicant has legal basis for a claim in respect of defects Respondent should have identified and failed in assessment / Applicant can be awarded compensation for cost and fitting of compressor, repairs to trailer and headlight adjustment / Respondent ordered to pay Applicant $3,865.90 / Claim allowed in part.

Nuisance / Fencing Act 1978 / Parties discussed boundary fence between properties / Respondents thought they reached agreement and built fence on own land inside boundary / Applicants claim fence interferes with their right to enjoy,  object to height, consider it unsightly, allege it obscures safe vehicle exit / Applicants claim for order that fence be removed and new jointly agreed fence built / Held: parties chose not to utilise Fencing Act dispute resolution process / Fencing Act cannot be applied / No nuisance created / Cannot decide claim about trespass / Outcome: claim and counterclaim dismissed

Consumer law / Consumer Guarantees Act 1993 / Applicant took his vehicle gearbox to the Respondent to repair because it was slipping out of gear / Applicant sought $3,778.11 from Respondent for repair cost of gear box and removal and installation of gearbox by a third party / Held: insufficient evidence Respondent failed to provide service with reasonable care and skill / Respondent’s work was fit for purpose, as the gearbox issue was fixed when it left his workshop / Applicant not entitled to compensation as there was no failure requiring remediation / Claim dismissed.

Unjust enrichment / International money transfer / Applicant arranged to send $15,000.00 overseas via a contact person online / Applicant provided bank account details to contact person / Applicant instructed to give the money in cash it to Respondents at a restaurant / First Respondent then phoned contact person to confirm $15,000.00 had been received / First Respondent asked Applicant to wait while contact person transferred the money to designated account / Applicant’s father stated that he had not received the transfer / Applicant asked to cancel the deal and get her money back, but First Respondent advised money had already been transferred  / Applicant sought recovery of $15,000.00 / Held: First Respondent and Second Respondent received the money from Applicant / Neither First or Second Respondent had the right to retain the money or to pass it on to contact person / Likely that the First and Second Respondents knowingly played a part in a scam / At the very least, First and Seco…

Contract / Applicant purchased timber from Respondent / Respondent supplied treated timber for decks and stairs that were built in Applicant’s property development / Later during building of decks apparent that the timber shade did not match / Testing indicated timber supplied was not requested treated timber / Applicant claimed for $30,000.00 / Held: Applicant believed he was being supplied type of treated timber he had purchased / Evidence indicated Applicant was not supplied correct timber / Breach of contract established by evidence / Costs presented were reasonable for remedial work required / Respondent ordered to pay $30,000.00 / Claim allowed.

Consumer law / Applicant engaged Respondent to rebuild car engine / Job cost $14,012.97 / Applicant relocated for work, stored car with friend / Friend took car for drive, car broke down / Respondent assessed engine, found it badly damaged from severe overheating / Applicant claimed engine failure connected to Respondent’s previous rebuild, sought refund / Held: evidence suggested engine failure caused by coolant loss due to punctured coolant hose / Not plausible damage was present at time of engine rebuild / Claim dismissed.

Request for rehearing / Disputes Tribunal Act 1988 / Respondent seeks a rehearing on the grounds he was unable to attend hearing due to medical condition / Held: Respondent failed to prevent further delays by appointing a representative at the three hearing dates / The Tribunal has an obligation to provide timely and expeditious outcomes / Rehearing application denied.