Disputes Tribunal of New Zealand

Rehearing / Applicant applied for a rehearing / Applicant claimed causation was not raised in earlier hearings / Held: no reason to order rehearing / Rehearing not an opportunity to perfect a case when evidence was available to a party during the initial hearing, but was not brought to the referee’s attention / Earlier order stands / Rehearing claim declined.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant bought vehicle from Respondent / Applicant noticed bad vibration once vehicle was driving over 70kph / Vehicle failed WOF  / Applicant claimed $1,964.75 for repair costs / Held: Respondent misrepresented condition of vehicle when he stated it was in good mechanical condition / Applicant induced to purchasing vehicle as a result of misrepresentation / Applicant entitled to compensation / Respondent ordered to pay $1,964.75 / Claim allowed.

Negligence / Applicant was driving down highway when she lost control and crashed, causing damage to her vehicle / Accident occurred on a section of highway that had recently been resealed by Respondent’s contractor / Applicant claimed there was an excessive amount of loose chip on the road, and that Respondent failed to warn her to slow down by showing a reduced speed sign / Applicant claimed $6,995.00 compensation for replacement cost of her car, salvage, storage and alternative travel from the accident / Held: accident did not occur due to negligent actions of the Respondent / Respondent had taken all reasonable steps to remove loose chip off road and had appropriate signage warning motorists of loose chip / Loose chip sign gave Applicant notice of temporary hazard which meant she should immediately slow down / Accident likely caused by Applicant failing to slow down and drive carefully across the loose chip / Claim dismissed.

Contract / Applicant was a flatmate of the Respondents / Applicant paid a bond of $800 / When Applicant moved out, Respondents withheld the bond claiming the Applicant’s cat had damaged the sofa / Applicant claimed for bond refund and overpaid rent / Respondents counterclaimed for compensation for repair costs of the sofa / Held: claim that the cat caused damage to the sofa was not supported by evidence / Rent was found to be overpaid by seven days / Respondents ordered to pay Applicant $1040, bond and overpaid rent / Claim granted and counterclaim dismissed.

Contract / Real Estate Agents Act 2008 / Respondent entered into a Sole Agency agreement (SAA) for sale of a property with co-owner and Applicant, a real estate agency / Sale and Purchase agreement (SPA) entered into between Respondent, co-owner and potential buyer conditioned upon sale of buyer’s property / Buyer unable to sell their property so SPA fell through / Respondent subsequently purchased property from co-owner in a private sale / Then Respondent entered into a SAA with another real estate company and sold property to same potential buyer / Applicant claimed they are entitled to a commission from sale due to a clause in SAA agreement / Held: wording of clause excludes the sale as it was not private agreement / Claim dismissed.

Negligence / Land Transport (Road User) 2004 / Parties were involved in road collision / Applicant’s vehicle was a write-off / Applicant and insurer claimed $26,361.95, comprising $33,000 pre-accident value of car, $793.50 towing and salvage costs, less $7,383.25 sale price of wreck / Held: Respondent caused collision / All evidence suggested Respondent’s vehicle crossed centre line and hit Applicant’s vehicle / Costs claimed were reasonable / Respondent ordered to pay Applicant’s insurer $26,361.95 / Claim allowed.

Negligence / Applicant and Respondent involved in vehicle collision / Applicant claimed Respondent and his insurer were liable for repair costs / Respondent and his insurer claimed Applicant's driving contributed to or caused collision / Held: Respondent breached the duty of care he owed as a driver to other road users / Applicant's driving did not contribute to collision / Respondent's insurer ordered to pay Applicant's insurer $4,679.06 / Claim allowed.

Contract / Respondent booked three night stay at Applicant’s beach house / Tariff was $245 per night for two people, with an additional $70 per person per night payable for more than two people / Applicant claimed Respondent booked for two people only / CCTV footage showed three cars at the property and six people / Applicant claimed $840 for additional per person charge for booking plus $600 cleaning costs and other related charges / Held: Applicant misrepresented number of guests / Applicant also had a dog at premises contrary to terms and conditions / Claimed cleaning costs assessed as being too high / Respondent ordered to pay $980.00, being $840 for extra guests, $100 for additional cleaning and $40 compensation for damaged towel / Claim allowed in part.

Negligence / Respondent hit Applicant’s vehicle causing damage / Respondent ordered to pay Applicant $834.00 / Applicant claimed officer failed to submit costs incurred in time for the court to consider / Applicant did not collect $834.00 / Applicant claimed $10,260.00 for written off vehicle, storage and towing costs, phone repair costs, compensation for days off work due to injury, courtesy car costs, child picking/dropping costs, and filing fee reimbursement / Held: Respondent breached duty of care / Respondent was negligent as he failed to stop short of Applicant’s vehicle and caused collision / Respondent liable for cost of reasonable losses suffered by Applicant / Respondent ordered to pay Applicant $3,995.92 for vehicle written off, storage and towing charges / Claim allowed in part.

Damages / Dog Control Act 1986 / Applicant’s car damaged while parked in driveway / Car's camera recorded damage caused by Respondent’s dog / Applicant noticed similar damage to his other car, although this damage was not caught on camera / Applicant and insurer claimed $10,237.93 from Respondent / Respondent accepted liability for damage to first car, but disputed liability for damage to second car / Held: evidence showed similar damage to both cars, occurring around the same time / Would be unlikely coincidence if cars had been similarly damaged by two different dogs around the same time / More likely than not that Respondent’s dog caused damage to second car / Respondent ordered to pay Applicant’s insurer $10,237.93 / Claim allowed.

Contract / Misleading conduct / Fair Trading Act 1986 / Respondent provided Applicant with a model for fashion shoot / Applicant discovered model had a large tattoo on her arm, which was inconsistent with the look Applicant required / Respondent offered to reduce fee / Applicant had photographs photoshopped to remove tattoo / Applicant claimed $3,561.15 / Held: Respondent engaged in misleading conduct / Photograph of model on Respondent’s website without tattoo likely to lead potential client to believe she had no tattoos / Applicant entitled to compensation / Amount required to return Applicant to position it would have been in had there been no misleading conduct was $353.35, being the difference between the photoshop costs and compensation already paid / Respondent ordered to pay Applicant $353.35 / Claim allowed in part.

Property / Damages / Applicant and Respondent were neighbours / Respondent cut and removed trees located on Applicant’s property near the boundary / Applicant claimed compensation for trees / Respondent counter-claimed compensation for work / Held: Respondent failed to prove Applicant consented to trees being cut / Respondent intentionally damaged Applicant’s property without consent / Respondent liable for Applicant’s loss / Respondent ordered to pay Applicant $24,788.97 / Claim allowed, counter-claim dismissed.

Negligence / Applicant’s vehicle was damaged by a passing car while parked on side of road / Applicant believed damage was caused by Respondent, whose car was passing at the time / Respondent denied hitting Applicant’s car, claimed he observed another car ahead of him on the road scrape Applicant’s car / Held: Applicant failed to prove on balance of probabilities that damage was caused by Respondent / Claim dismissed.