Disputes Tribunal of New Zealand

Contract / Applicant contracted respondent to provide building materials to specification / Excessive amounts of building materials leftover after building completion / Applicant claimed compensation for unused materials / Held - Applicant received correct order and was unable to show Respondents had breached contract / Applicant had accepted the order and respondents provided building materials per order / Claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicant ordered a custom-made couch from Respondent and paid $1,499.00 / Term of contract was that couch would be delivered to Applicant’s home / Respondent did not successfully deliver the couch due to size of the couch / Applicant claimed full refund of $1,499.00 / Held: Respondent breached contract by failing to deliver couch / Parties agreed Applicant told Respondent he had a “tiny doorway” / It was an essential term of the contract that the couch would be made a size that would fit through Applicant’s “tiny doorway” / Size of doorway was the reason Applicant ordered a custom-made couch / Respondent failed to make a couch that could fit through the doorway therefore Applicant was entitled to full refund / Respondent ordered to pay $1,499.00 / Claim allowed.

Consumer law / Defective goods / Consumer Guarantees Act 1993 / Applicant purchased a bed from Respondent for $798.00 / Payment was made by another party / When the bed was delivered, Applicant noticed the bed had missing components and minor damage / Applicant claimed $480.00 as he remedied the missing parts himself / Applicant asked for a partial refund, but Respondent’s policy was that any partial refund was to be returned to party who paid for the bed / Held: bed was not free of minor defects when it was purchased / Respondent failed to rectify the issue in a reasonable time or in a way that avoided further issues / Party who paid did not suffer any consequential loss / Applicant had to find his own remedy / Applicant requested reasonable compensation for his efforts / Reasonable to pay $350.00 directly to Applicant for missing parts and inconvenience / Claim allowed.

Fencing / Parties were neighbours / Applicant wished to erect fence on properties' boundary / Earlier decision ordered 1.5m fence to be built and for Respondents to pay half the cost / Applicant applied for rehearing following new guidance from council about height permissions and a builder recommending a retaining wall / Local council advised maximum height allowed without consent was 2m / Applicant obtained resource consent from Council allowing 2m fence / Builder told Applicant necessary to build retaining wall because works on Respondents' property raised ground level on Applicant's property / Held: not appropriate to change original order for 1.5m fence but above 1.5m allowed where uneven land required it / Not established further work or retaining wall required to build fence / Not appropriate to revisit other aspects of original order / Claim allowed in part.  

Contract / misrepresentation / Contracts and Commercial Law Act 2017 / Applicant purchased boat from Respondent / Second respondent reported engine was in good condition / Engine developed problems after purchase that required a full replacement / Applicant claims cost of new engine as damages / Held - Respondents not liable for misrepresentation / Respondents did not know engine was in poor condition needing imminent repair or replacement / Applicant was responsible as buyer for getting mechanic's assessment of engine or asking specifically about its condition / Respondent had not experienced engine issues / Applicant knew second respondent was not a boat mechanic and had done visual inspection only / Claim dismissed.

Contract / Undisclosed Principal / Second Respondent is director of Respondent company / Applicant carried out plumbing services for Second Respondent / Applicant changed invoice into name of Respondent company at Second Respondent's request / Respondent company failed to pay invoice and went into receivership with no assets left / Applicants claim to recover invoice amount from Respondent company or Second respondent / Second Respondent said they only entered contract with Applicant as director of Respondent company / Held - Respondent and Second Respondent jointly and severally liable as Second Respondent had entered contract as an agent on behalf of undisclosed principal (Respondent) / Second Respondent did not mention Respondent company to Applicant until after invoice issued.

Insurance / Insurance Law Reform Act 1977 / Applicant involved in car accident / Respondent declined Applicant's insurance on grounds that Applicant failed to disclose previous driver's licence suspension / Applicant claimed Respondent is obliged to cover vehicle insurance / Held: reasonable insurer would not consider Applicant's short period of suspension / Respondent's conduct can be regarded as misleading / Adoption of Respondent's internal policy contradicts material signed by Applicant / Respondent ordered to pay Applicant $24,550 / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 / Applicant purchased a freezer from Respondent / Two years and eight months later the freezer failed, resulting in its contents being spoiled / Technician advised freezer had a gas leak and was not worth repairing / Respondent offered to replace freezer, however Applicant declined the offer and requested a refund / Applicant brought claim to recover price paid plus cost of contaminated food / Held: a consumer would expect a freezer to last longer than 2 years and 8 months, regardless of price / Freezer failed to comply with guarantee of acceptable quality / Failure was substantial / Applicant entitled to cancel contract and obtain full refund of $399 / Loss of food stored in freezer was reasonably foreseeable loss / Respondent liable for loss of $200 / Respondent had already paid Applicant $599 in accordance with earlier Disputes Tribunal order, therefore no further payment required / Claim allowed.

Contract / Contract and Commercial Law Act / Breach of Contract / Respondent and Applicant entered agreement for sale of relocatable villa / Parties agreed deposit would be paid immediately and the balance at a later date / Respondent signed contract prepared by Applicant which Respondent did not realise had different date for final payment than agreed / Dispute arose about date of settlement / Respondent did not proceed with purchase / Applicant claimed for balance of purchase price / Respondent counterclaimed for return of deposit / Held - Respondent breached contract by choosing to not proceed with purchase / Respondent not liable to pay balance as steps available to mitigate their loss were not taken by Respondent and their insistence on earlier settlement date was unjustified / Applicant not entitled to refund of deposit as her breach of contract had caused loss to Respondent / Claim dismissed / Counterclaim dismissed.

Negligence / Consumer Guarantees Act 1993 (CGA) / Applicants made a payment of $5,300.00 after receiving an invoice receipt, which they believed to be from the Respondent / Applicants subsequently discovered that the email and related invoice were a scam / The deposit was not paid to the Respondent but to a bank account of the scammer / Applicants sought an order for the refund of the deposit from the Respondent / Held:  Applicants can make a claim pursuant to the CGA / Respondent did not exercise reasonable skill and care, as they did not have adequate cyber security protections / Respondent must repay the deposit ($5,300.00) to the Applicants / Claim allowed.

Negligence / Applicant was cycling when he hit the opening driver’s door of Respondent’s parked car / Applicant and his insurer claimed $2239.20 for a replacement bike / Respondent alleged it was not his fault and that the Applicant should have left enough space so that he didn’t hit his car door / Respondent counterclaimed $1880.83 / Held: Respondent breached his duty of care to not cause a hazard by opening the door of his vehicle / It would be prudent for Applicant to take account of safe riding guides, but they were not legally binding / Applicant was only required to ride at a certain speed below the speed limit and to be able to stop if a pedestrian crossed the crossing / No evidence Applicant was breaching speed limit / Applicant did not contribute to or cause the collision / Respondent was at fault for collision / Claim allowed and counterclaim dismissed.

Tort / Trespass / Applicants purchased property with sign advertising business associated with Respondent / Respondent's employees cut sign down / Sign was on Applicants land and Applicants' had intended their own use of sign / Respondents believed sign was on their land and was their sign / Applicants claimed damages for trespass / Held: the sign belonged to Applicants and Respondents committed trespass on the Applicants' land and on sign by negligently and wrongfully interfering with it without Applicant's permission / Applicants would receive betterment by receiving a new replacement sign / Respondent ordered to pay $10,761.14 / Claim allowed in part.

Consumer / Consumer Guarantees Act / Respondents issued Applicant with a parking infringement notice and fine / Notice and fine were waived but Applicant alleges respondent's appeal system is unsatisfactory / Applicant claims costs for the time and inconvenience of having to deal with the infringement and appeal system / Held - Respondents provided services with reasonable care and skill / Applicant's evidence was also insufficient to show bad faith by respondents / No basis for award of compensation / Claim dismissed.