Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Respondents engaged Applicant’s property management services / Parties signed contract with 12-month fixed term / Respondent believed Applicant’s attempts to find tenant were inadequate and attempted to cancel contract / Applicant responded suggesting a reduction of rent, and noting 12-month fixed term on contract / Respondents confirmed cancellation / Respondents engaged another property management company who readvertised property for cheaper rent, after which property was tenanted quickly / Applicant invoiced Respondents for full 12-month fee / Applicant claimed $4682.80 for full 12-month fee plus $120 advertising costs / Held: Applicant did not breach its contractual obligations to Respondents who were therefore not entitled to cancel contract / Intermeddling and exclusivity clauses in contract contained a penalty component that was not enforceable / Reduction to amount claimed in damages to more accurately reflect losses likely suffered by Applicant / Respondents ordere…

Date of decision: 22 April 2024.  Human Rights Act 1993. 

Objection to valuation by Council – Rating Valuations Act 1998, s 36 – Objection withdrawn by consent – No costs order.

Contract / Applicant engaged Respondent to paint her rental property and paid $5,034.13 deposit / Before work started Applicant cancelled contract and asked for deposit back / Respondent refunded $4,114.13 but retained $920.00 / Applicant sought an order that Respondent was liable to refund full deposit / Parties’ contract stated that if contract was cancelled before work began, Applicant would be provided full refund / Respondent claimed situation was unusual, as Applicant had re-opened an earlier quote she had previously declined / Respondent claimed in this situation it should be entitled to charge for administration costs incurred / Held: Respondent did not indicate its original terms and conditions would not apply when Applicant accepted the re-opened estimate / If Respondent wished to change its terms, it needed to make this clear / Original terms and conditions therefore still applied / Applicant entitled to full refund / Respondent ordered to pay $920.00 / Claim allowed.

Consumer law / Contract and Commercial Law Act 2017 / Applicant purchased a vehicle from Respondent for $5,500.00 / Applicant told Respondent she would be driving around the country and asked if there was anything she should know about van / Respondent said van was in good working order / Applicant asked if she could take van for a pre-purchase inspection, but Respondent said her husband was a mechanic, so Applicant did not get an inspection done / Vehicle blew a head gasket while Applicant was driving around the country / Applicant claimed $4,800.00, comprising $4,279.80 for repairs plus other related travel costs / Held: misrepresentation to state vehicle was in good working order / Applicant entitled to understand it as a statement of fact in the circumstances / Applicant induced to buy vehicle without pre-purchase inspection / Applicant entitled to recover $4,279.80 spent on repairing vehicle / Applicant did not have evidence of other costs, so sum awarded was $4,279.80 / Claim all…

Consumer law / Consumer Guarantees Act 1993 / Disputes Tribunal Act 1988 / Applicant purchased a phone from Respondent which came with a one year warranty / After 18 months Applicant started to experience problems with it / Applicant took phone to authorised repairer / Repairer declined to repair phone as it was defective / Applicant wanted Respondent to repair defective phone and pay filing fee / Held: phone no longer under warranty / Applicant entitled to remedy as phone was not of acceptable quality / Unable to award filing fee in the circumstances / Respondent liable for all repair costs / Claim granted in part.

Bailment / Applicant left vehicle in parking lot shared by several businesses for Respondent to provide quote for repair / Applicant left keys with Respondent / Vehicle was later stolen / Applicant claimed bailment relationship was created when he left vehicle and keys with Respondent and Respondent was responsible for costs relating to any loss or damage of vehicle / Held: in accepting and retaining keys, Respondent took exclusive possession of vehicle, creating bailment relationship between parties / Respondent did not take reasonable care as they made no provision for securing vehicle in protective manner / However, Applicant assumed risk for leaving vehicle in shared parking lot with no security or protection / Applicant made no attempt to ascertain what protection would be afforded to vehicle and was told that it would be left in shared parking lot / Applicant’s assumption of risk was full defence for Respondent’s failure to take reasonable care with vehicle / Claim dismissed.

Consumer law / Consumer Guarantees Act 1993 / Applicant ordered custom-built gate from Respondent / Applicant claimed gate installed was not the one he asked for / Applicant had Respondent remove gate / Applicant sought an order that Respondent liable to repay $1,770.86 deposit and $800.00 for damage done to drive and fence / Respondent counter-claimed $2,703.67 for balance of purchase price plus interest and fee to re-install gate / Held: insufficient evidence that Respondent breached Consumer Guarantees Act / Gate supplied matched gate quoted for / It was for Applicant to ensure gate quoted was what he wanted, before accepting quote / Respondent entitled to retain deposit / Respondent not entitled to any further payment from Applicant / Claim and counter-claim dismissed.

Contract / Contract and Commercial Law Act 2017 / Applicants engaged Respondent to design and build shed home for fixed price and paid deposit / Applicants cancelled contract / Applicants claimed sums Respondent retained for margins on sub-contractors work, programme design and draughtsman drawing / Held: Respondent must refund draughtsman fee and margins / Respondent agreed to refund and no evidence of draughtsman work or margins paid / Respondent entitled to charge fee for project design system / Respondent ordered to pay Applicants $18,003 / Claim allowed in part.

Contract law / Consumer Guarantees Act 1993 / Applicant purchased vehicle from Respondent / Vehicle overheated and went limp shortly after purchase / Applicant attempted to contact Respondent but he blocked them online / Applicant sought $9,000 payment refund and to return the vehicle to Respondent / Held: Respondent advertised other vehicles online, therefore CGA applies as he is deemed a supplier in trade to a consumer / Respondent breached CGA by supplying a vehicle not of acceptable quality / Applicant entitled to $9,000 purchase price refund from Respondent / Claim allowed.

Consumer law / Consumer Guarantees Act 1993 (CGA) / Applicants planned to travel on one of the Respondent’s ferries / Applicants advised evening before travelling that sailing was cancelled due to a serious incident / Respondent provided full refund of ferry fare / Applicants sought damages of $1,651.81 for costs stemming from cancellation of ferry at short notice / Held: damages can be awarded to cover reasonable foreseeable losses resulting from Respondent’s failure to comply with the CGA / Awarded damages of $144.97 for costs of return flights, $553 for car hire, $82.50 for airport carparking, $45 for uber / Costs of food, pharmacy purchase, and $640 for time spent rearranging travel were too remote and not foreseeable losses / Respondent ordered to pay $1,075.47 / Claim allowed in part.

Contract / Contract and Commercial Law Act 2017 / Applicant attempted to book accommodation over Christmas period on Respondent’s website / Applicant received pop-up which he understood to mean booking was unsuccessful, so booked elsewhere / Applicant’s credit card was later charged full booking price of $6390 / When contacted, Respondent refused to cancel booking or relist property / Applicant claimed contract never formed, sought $6873.04 refund, interest and filing fee / Held: not proven that booking resulted from system error as claimed by Applicant / Although Respondent not obligated to relist property, relying on this term was harsh in circumstances, contributed to Applicant’s loss / Respondent agreed to refund $299 booking fee and $206 cleaning fee / Further order of $500 justified to acknowledge that Respondent’s refusal to relist property led to unfair and unjust situation for Applicant / Respondent ordered to pay $1005.00 / Claim allowed in part.