Disputes Tribunal of New Zealand

Contract / Applicant provided educational advocacy services for the Respondent / Respondent did not receive invoice but paid Applicant $431.28, understood to be consultation fee / Applicant suggested Respondent required decluttering assistance at her home / Respondent said she was happy to pay Applicant’s friend $30 an hour for decluttering / Applicant and her friend attended Respondent’s home to perform decluttering services to mixed results / Respondent received invoice for $1,717.74, less the $431.27 paid, for educational advocacy and decluttering services / Respondent paid for Applicant’s friend’s services but declined to pay Applicant’s charges for decluttering / Applicant claimed $1,286.46 from Respondent for balance of invoice / Held: Applicant did not explain her charging structure or seek Respondent’s agreement / No contract of service was entered into at the time / Applicant did not appropriately and effectively contract the Respondent into de-cluttering services / Charges re…

Contract / Carriage of goods / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / First Respondent transported three dogs (a mature dog, and two pups) belonging to the Applicant / Days later, the puppies contracted a virus / Applicant contended puppies contracted the virus when they were transported in the Respondent’s bus / Applicant contended Respondents did not provide a service of reasonable skill and care / Applicant sought compensation for vet bill and related costs / Held: not clear that the Applicant’s puppies contracted the virus whilst in the care of the First Respondent, and being transported / Unable to establish that it was more likely than not that there was a causal link between the transportation of the puppies and the puppies’ infection / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicants contracted Respondent to lay concrete at their home / Whilst laying concrete on the driveway concrete was splashed on to Applicants’ new garage door / Applicants attempted to remove splashes unsuccessfully / Respondent then attempted to remove splashes but left extensive swirls over the door / Applicants claimed for cost of replacing all the panels on the garage door / Held: Respondent liable to repair the door / Allowing concrete to splash on to the door was a breach of contractor’s duty of care to carry out service with reasonable care and skill / Applicants’ efforts to remove splashes were reasonable and did not detract from Respondent’s liability for allowing splashes to occur in the first place / Respondent ordered to meet entire replacement cost of the panels because the door was new / Respondent ordered to pay $2,587.50 / Claim allowed.

Contract / Credit Contracts and Consumer Finance Act 2003 / Applicant purchased a massage chair from Respondent for $4,090.00 / Purchase was made through credit card financing with an initial deposit of $690.00 / Later that evening, Applicant realised chair would not fit into his house / Next day, Applicant asked to cancel purchase / Respondent refused to allow him to cancel, relying on its terms and conditions, and offered a store credit / Applicant claimed $1,000.00 from Respondent, comprising a refund of his deposit and damages for his time and stress dealing with dispute / Held: Applicant gave written notice to cancel contract day after purchasing chair / Contract therefore cancelled and Respondent must return deposit / Respondent not proven that it incurred any expenses in connection with contract / Applicant cannot recover damages for time and stress in dealing with dispute / Respondent ordered to pay $690.00 / Claim allowed in part.

Consumer law / Applicants contacted Respondent for plumbing work / Applicants said they informed Respondent that they owned neighbouring houses, and Respondent needed to ensure it attended the correct one / Applicants received an invoice for Respondent’s attendance at different address / Different address was also owned by the Applicants / Applicants said Respondent went to the wrong house which did not have a plumbing issue / Respondent stated Applicant supplied the address they attended / Respondent’s plumber carried out requested plumbing work at that property / Applicants disputed payment of $211.38 invoice / Applicant sought a ruling on their liability / Held: Respondent receptionist’s evidence was credible regarding supplied address information / Respondent’s plumber carried out actions consistent with the instructions given by Applicants / Applicants ordered to pay $211.38 / Late payment and debt collector charges made by the Respondent were not permitted / Claim allowed in part…

Negligence / Parties were involved in vehicle collision / Differing accounts as to who was at fault / Applicant said he was driving straight in his lane when the Respondent’s car crossed directly in front of him appearing to have lost control / Respondent said she was driving straight in her lane when the Applicant indicated right and moved a bit into her lane as she was passing / Respondent said she took evasive action but in doing so lost control and spun across the motorway, hitting the front of the Applicant’s vehicle / Applicant and his insurance company claimed the losses resulting from the Applicant’s car being written off, $7269.95 / Held: evidence indicated Applicant made an unsafe lane change as he did not check adequately that the way was clear before entering the Respondent’s lane / Applicant’s actions caused the Respondent to lose control of her vehicle and that led to the resulting collision / Respondent was not liable in negligence / Claim dismissed.

Contract / Applicant completed repair work on Respondent's boat / Applicant invoiced Respondent but he did not pay / Account referred to Applicant's debt collectors but they were unsuccessful / Applicant claimed $4,748.54 made up of principle amount ($1,829.06) together with contractual interest amounting to $2,919.48 / Held: Respondent breached the contract / Respondent required to pay invoiced sum of $1,829.06 / Respondent not required to pay claimed interest / Respondent had no opportunity to accept or reject the terms, so not an agreed part of the contract / Discretion to award interest / Interest calculated as $329.45 / Respondent required to pay $2,158.51 in total / Claim granted in part.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased vehicle from Respondent / Engine failed shortly after purchase / Applicant claimed $19,000 purchase price plus costs / Held: vehicle had regular servicing / Not clear that the chain was rattling as assumed by Applicant / Chain failure could be unrelated to any servicing history / No warranty in private sales that allows a buyer to recover if a vehicle was later found to be defective / No misrepresentation by Respondent / No loss for Applicant / Claim dismissed.

Contract / Cancellation / Fair Trading Act 1986 / Applicant bought boat from Respondent and paid $5,000 deposit / Upon viewing the boat, Applicant advised Respondent that they do not want to purchase the boat and claimed refund / Respondent claimed deposit as non-refundable / Held: Applicant could request refund so long as he put that request within a short time of viewing the boat / Clause allowed Applicant to cancel for any reason / Respondent ordered to pay Applicant $5,000 / Claim allowed.

Negligence / Applicant claimed she was driving on road when Respondent pulled out of a side road without giving way / Respondent’s vehicle collided with Applicant’s vehicle causing damage / Respondent left the scene without stopping / Applicant brought claim to recover losses incurred in the accident / Held: intersection was controlled by a give way sign / Respondent failed to give way and was therefore liable in negligence for losses incurred / Actual cost to repair vehicle was $575.00 / Respondent ordered to pay $575.00 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicants engaged Respondent to replace their driveway / Applicants claimed large parts of new driveway failed within days of being laid / Respondent returned and replaced two thirds of the driveway / Applicants were unhappy with remedial work and asked Respondent to “satisfactorily complete” the contracted job / Respondent refused / Applicants claimed $30,000.00 refund / Respondent denied liability, contending problem with driveway was due to inadequate drainage / Held: evidence established by a wide margin that there were multiple, serious and significant defects with the driveway which could only be attributed to Respondent’s faulty workmanship / Breach of statutory guarantee to carry out service with reasonable care and skill / Failure was substantial and attempted remedy ineffective / Applicants entitled to refund / Respondent ordered to pay $30,000 / Claim allowed.

Contract / Fair Trading Act 1986 / Applicant allowed employee to use company car for personal use / Employee exceeded time limit in carpark managed by Respondent / Respondent issued $65.00 breach notice to Applicant / Applicant refused to pay on basis it had no contract with Respondent / Respondent continued to demand payment / Applicant claimed $145.00 for filing fee and time spent dealing with Respondent’s letters / Respondent waived charges following notice of hearing, / Applicant continued with claim, arguing Respondent had engaged in misleading and deceptive conduct / Held: Respondent made misleading representation by asserting its terms and conditions bound owners of vehicles as well as drivers / $100.00 was conservative estimate of Applicant’s time and monetary loss involved in responding to Respondent’s misleading representation / Filing fee could not be awarded / Respondent ordered to pay $100.00 / Claim allowed in part.

Contract / Insurance / Applicant involved in vehicle accident / Third party drove into the rear of Applicant's car / Applicant claimed full insurance from Respondent / Held: third party did not negligently collide with Applicant's vehicle / Accident due to unforeseen medical evident / Applicant can bring a claim against the third party but this is likely to fail / Claim withdrawn.