Disputes Tribunal of New Zealand

Contract / Fair Trading Act 1986 / Applicant signed contract for building company to build house / Applicant paid deposit of $23,500 / Work began on concept drawings / No further progress made, Applicant informed First Respondent he wished to cancel contract / Building company placed into liquidation having not built house or repaid deposit / First Respondent promised to repay deposit / Applicant claims Respondents engaged in misleading and deceptive conduct by contracting to build house knowing completion was impossible given company’s financial situation / Applicant seeks compensation for lost deposit from First Respondent who is sole director of building company and/or Second Respondent who was employed at relevant time / Held: when contract entered company was trading and operating / Applicant has not been able to prove misleading or deceptive conduct that led to loss of deposit / First Respondent has been adjudicated bankrupt so claim cannot proceed against him / Second Respondent…

Legal fees / Applicant engaged Respondent to act on an employment matter / Respondent’s engagement letter provided fee estimate of $2,500 to $3,500 plus GST / Applicant paid 1,900.00 / Respondent issued a further invoice totalling $1,357.00 / Applicant’s employment settlement included contribution of $4,500 plus GST ($5,175.00) to Applicant’s legal fees by former employer / Applicant claimed payment covered total fee owed / Applicant claimed refund of $1,900.00 paid to Respondent and Tribunal application fee / Respondent claimed entitled to retain $1,900.00 / Respondent counterclaimed $1,456.67, for amount due plus interest / Held: amount paid by Applicant’s prior employer to Respondent exceeded fees payable / Respondent’s claim for filing fee not allowed / Respondent’s application for payment of additional fees dismissed / Respondent ordered to pay $1,900 / Claim allowed.

Consumer law / Contract / Consumer Guarantees Act 1993 / Contract and Commercial Law Act 2017 / Applicant purchased ex-rental projector from Respondent for $383.99, for use at club meetings / Projector used at 12 meetings / Projector stopped working suddenly / Respondent assessed projector, concluded it was not worth repairing / Applicant claimed $300 compensation / Held: Applicant communicated intended purpose for projector, relied on Respondent’s expertise / Projector was fit for purpose, used for intended purpose on 12 occasions / Applicant knew projector was ex-rental, had been well used, as reflected in price much lower than cost of new projector / Respondent not liable for projector failing unexpectedly, particularly as cause of failure unclear / Respondent did not make any misrepresentations about projector / Claim dismissed.

Contract / Applicant and respondent registered to produce a dance performance at a festival / The working relationship between applicant and respondent broke down / Applicant claims that respondent is liable for half the cost of production based on partnership arrangement / Held: partnership was not equal and no other basis upon which respondent should pay all or part of the costs sought / Claim dismissed.

Fraud / Applicant obtained healthy homes assessment report from Respondent / Applicant discovered extractor fans and heater were not installed in the property, which were necessary items to achieve healthy homes compliance / Former sub-contractor of Respondent engaged in fraudulent behaviour whilst undertaking work for Applicant / Applicant claimed reimbursement of $1,150 payment / Held: Respondent is not prevented from being liable to Applicant just because Respondent were without legal fault or moral blame and did not benefit in any way from sub-contractor's fraud / Value of report is $250 / Respondent ordered to pay Applicant $900 / Claim allowed.

Consumer Law / Consumer Guarantees Act 1993 / Applicant booked holiday through Respondent / Booking included accommodation in stopover city / Stopover accommodation was booked for two nights / Outgoing flight left stopover city at 12:15am of second night / Applicant believed she would stay at hotel on second night, depart stopover city at 12:15am following night / Applicant missed flight / Applicant claimed Respondent misled her / Respondent sought compensation for costs incurred as result of missing flight / Held: Applicant’s itinerary clearly stated time and date of flight / Applicant was asked to check itinerary before accepting and paying / Applicant confirmed acceptance of itinerary / Applicant’s loss was not due to failure by Respondent to provide service with reasonable care and skill / Claim dismissed.

Negligence / Maritime Rules / Convention on the International Regulations for Preventing Collisions at Sea 1972 / Contributory Negligence Act 1947 / Collision at sea between Applicant's bowrider boat and Respondent's catamaran / Applicant and Applicant's insurer claimed $13,756.26 for loss and damages / Respondent counterclaimed $8,970 damages / Held: skipper of vessels have a duty of care to others on sea / Respondent was negligent and failed to take all reasonable precautions in the circumstances to keep proper lookout / Applicant also contributed to cause of collision and subsequent damage by anchoring in no anchoring zone and failing to display anchor shapes / Applicant's company vicariously liable for Applicant's contributory negligence / Respondent liable for 80% of damages and Applicant jointly responsible for 20% / Respondent and Respondent's Insurer ordered to pay Applicant's Insurer $10,324.80, of which $500 paid to Applicant / Applicant and Applicant's Insurer ordered to pay…

Contract / Consumer Guarantees Act 1993 / Applicant engaged Respondent to install flooring / Applicant unhappy with Respondent’s work / Respondent tried to fix issues identified by Applicant / Applicant wanted to cancel contract, requested refund and for Respondent to uplift and remove floor / Respondent offered to vary contract / Parties agreed Respondent would supply materials at discounted price and Applicant would engage different installer to finish job / New installer told Applicant floor would need to be taken up and started from scratch / Applicant claimed full refund of $3835.80 / Held: insufficient evidence that defects in Respondent’s work were substantial or could not be remedied by Respondent or another installer / Applicant affirmed contract when he agreed to variation / Applicant not entitled to refund / Claim dismissed.

Contract / Land Transport Rule: Vehicle Standards Compliance 2002 / Applicant purchased car from Respondent for $1,900.00 / Applicant then took car for pre-warrant inspection / Vehicle found to be unsafe to drive / Applicant sought refund of purchase price as well as $250.00 for fuel and wasted time / Held: Applicant entitled to reject car and recover purchase price as the repairs to warrantable standard would cost more than car's purchase price / Respondent ordered to pay Applicant $1,900.00 and collect vehicle / No evidence of the amount of petrol wasted / Damages not awarded for wasted time / Claim granted in part.

Contract / Respondent engaged Applicant to paint holiday house owned by Respondent / Applicant moved into Respondent's property and wanted to purchase property / Applicant claimed to be paid $6,349.61 for repair costs / Held: Respondent not bound by enforceable agreement to sell / Applicant has not shown Respondent received benefit and had been enriched by work on property / Claim dismissed.

Contract / Consumer Guarantees Act 1993 / Applicant purchased car from Respondent / Two days after purchase Applicant experienced problems with car / Applicant took car to mechanic who told him the CV joint and strut mount on the front passenger side needed replacing / Turbo also needed replacing / Held: the Act applies / Problems with the car were of substantial character / Applicant entitled to reject car and obtain refund of purchase price / Respondent to pay Applicant $8500.00 / Claim allowed.

Contract / Tenancy / Parties entered into Tenant and Sublettee agreement / Applicant seeks repayment of bond, administration costs, filing fees for Tenancy and Disputes tribunals / Respondent disputes claim saying applicant didn’t undertake additional work around the property and damaged a wall / Held: applicant did not breach terms of agreement by not undertaking additional work and by putting two holes in the wall for a TV bracket / Respondent is a tenant not the landlord / No evidence from landlord that has made applicant liable for damaged caused to wall / No actual cost of damage caused to respondent / No breach / Outcome: claim allowed, respondent to pau applicant $800.00