Ferme v Kimberley Discovery Cruises Pty Ltd
[2015] FCCA 2384
•2 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERME & ORS v KIMBERLEY DISCOVERY CRUISES PTY LTD | [2015] FCCA 2384 |
| Catchwords: CONSUMER LAW – Where term in contract provided for forfeiture of amount paid upon cancellation by respondent – where respondent cancelled contracted cruise because of inclement weather – where respondent forfeited amounts paid by applicants – whether forfeiture term unfair for the purposes of s.23(1) of the Australian Consumer Law – whether standard form contract for the purposes of s.23(1) of the Australian Consumer Law – where standard form contract – where forfeiture term unfair – forfeiture term void – whether applicants entitled to recover amounts paid for a consideration that has wholly failed. |
| Legislation: Australian Consumer Law, Part2-3, ss.23, 23(1), 23(1)(b), 24, 24(1), 24(1)(a), 24(1)(b), 24(1)(e), 24(2), 24(2)(b), 24(3), 24(4), 25, 25(1), 25(1)(a), 25(1)(k), 27, 27(1), 27(2), 236 |
| Baltic Shipping Company v Dillon (1993) 176 CLR 344 |
| First Applicants: | THOMAS FERME AND LAUREL FERME |
| Second Applicant: | VALMAE WEST |
| Third Applicant: | KATHLEEN WOOD |
| Fourth Applicants: | RICHARD AND HEATHER HARRY |
| Fifth Applicant: | MARIE PEGLER |
| Sixth Applicants: | JAN AND PETRONELLA DE VRIES |
| Respondent: | KIMBERLEY DISCOVERY CRUISES PTY LTD ACN 099 749 541 |
| File Number: | BRG 1122 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 28 November 2013 |
| Date of Last Submission: | 28 November 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 2 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson QC |
| Solicitors for the Applicant: | Rogers Barnes & Green |
| Counsel for the Respondent: | Mr Tyndall |
| Solicitors for the Respondent: | Bowen Legal |
ORDERS
The respondent pay to the first applicants the sum of $14,990 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the second applicant the sum of $7,495 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the third applicant the sum of $7,495 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the fourth applicants the sum of $14,990 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application within the next 28 days for that purpose made;
The respondent pay to the fifth applicant the sum of $7,495 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the sixth applicants the sum of $15,190 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
In the absence of the respondent making application to the Court within the next 28 days for orders to different effect, the respondent pay the applicants’ costs of and incidental to this application to be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1122 of 2012
THOMAS FERME AND LAUREL FERME
First Applicants
VALMAE WEST
Second Applicant
KATHLEEN WOOD
Third Applicant
RICHARD AND HEATHER HARRY
Fourth Applicants
MARIE PEGLER
Fifth Applicant
JAN AND PETRONELLA DE VRIES
Sixth Applicants
And
| KIMBERLEY DISCOVERY CRUISES PTY LTD ACN 099 749 541 |
Respondent
REASONS FOR JUDGMENT
Tropical Cyclone Lua crossed the Western Australian coast during the afternoon of 17 March, 2012. It was a destructive cyclone of category 4 strength. Not only did it directly affect all of those who lived and worked in its path, which tracked from the Indian Ocean across the northwest Western Australian coastline and into the Pilbra, it also affected others who were very much looking forward to holidaying there.
The respondent conducts a business organising and undertaking recreational cruises in and around the Kimberley coast in northwest Western Australia aboard a catamaran named Discovery One. Between 13 March, 2012 and 26 March, 2012 each of the applicants had hoped to cruise the waters off the Kimberley coast aboard Discovery One between Wyndham and Derby, stopping at points of interest in between.
However, the presence of Tropical Cyclone Lua off the coast of northwest Western Australia in March, 2012 and another low pressure system to the northeast of that area meant that the cruise was likely to be unsafe and was certain to be unpleasant. The respondent cancelled the cruise. No criticism was made, nor could be made, of the respondent for that decision.
This proceeding concerns the application of Part 2-3 of the Australian Consumer Law to the contracts for provision of the cruise by the respondent to each of the applicants. In particular, the proceedings concerns whether the terms in those contracts which provided for cancellation of the cruise in the circumstances that presented themselves here was unfair for the purposes of the Australian Consumer Law. The applicants claim that the offending terms in the cruise contracts are void pursuant to s.23(1) of the Australian Consumer Law.
The facts
Many of the facts are not in dispute. The respondent operated the business of Kimberley Discovery Cruises and the vessel Discovery One.
The respondent advertised and offered for sale to members of the public, passage aboard Discovery One on a cruise from Wyndham, Western Australia to Derby, Western Australia between 13 March, 2012 and 26 March, 2012.
There is a dispute between the parties as to whether the respondent was offering a “cruise”, or as the respondent puts it, a “holiday tour and cruise”. The dispute has some significance, to which I will come later in these reasons. The dispute arises because the respondent, as part of its contract with some of the applicants, undertook to transfer them from Darwin to Wyndham at the commencement of the cruise and from Derby to Broome at the conclusion of the cruise.
The applicant’s rely upon a document described by them as an “Itinerary” in which the following appears:
Darwin to Broome:
March 13th to March 26th, 2012: $7,495 per person twin share
Incorporating a cruise between Wyndham and Derby plus all transfers.
Discover the incredible beauty of the Kimberley, as our comfortable 82’ catamaran, Discovery One, makes her way from the historic settlement of Wyndham to the township of Derby. You will experience 14 days and 13 nights of wonder as we take you on a never to be forgotten journey through this pristine and spectacular wilderness. Our cruise includes Kimberley icons such as the Horizontal Falls, Montgomery Reef and Raft Point, with the added bonus of viewing the stunning waterfalls of the region in their full glory after the wet season!
All transfers are inclusive in the price and will be via a flight from Darwin or Kununurra and a bus transfer from Kununurra to Wyndham, at the start of the cruise, and a bus transfer from Derby to Broome at the conclusion of the cruise. If you wish to leave from, and return to Kununurra, alternative transfer options can be arranged. Also included in the price are all excursions, meals and GST.
For some of the applicants, the respondent provided one night’s accommodation in Darwin including breakfast before their transfer to Wyndham.
Each applicant made a contract with the respondent whereby the respondent undertook to provide the holiday to the applicant. The amount paid by each of the applicants for their fares was:
a)first applicants $14,990;
b)second applicant $7,495;
c)third applicant $7,495;
d)fourth applicants $14,990;
e)fifth applicant $7,495;
f)sixth applicants $15,190.
The parties agree that the contract between the respondent and each of the applicants included a document described as “Kimberley Discovery Cruises Terms & Conditions”. The Terms & Conditions applied to each passenger. The Terms & Conditions commence in the following way:
Please read these Cruise Ticket Conditions carefully. All bookings and travel with Kimberley Discovery Cruises are subject to these conditions which affect your legal rights and are binding on you.
Under the heading “Contract” the Terms & Conditions provided:
Upon payment of the fare for the Cruise (which is described in our brochure) and the confirmation of the booking by us or an authorized travel agent, a Contract is concluded between the carrier and the passenger concerning the Cruise in terms of these Cruise Ticket Conditions.
In the Terms & Conditions, “Unexpected event” is defined as follows:
“Unexpected Event” means any act, circumstance or event beyond the control of the carrier caused or arising from but not limited to acts of God, public enemies, government restraint, riots, strikes, lockouts, labour troubles, epidemic, civil disturbances, perils of the sea, harbour, rivers or other navigable waters, fuel shortages or abrupt and unexpected increases in fuel costs, collisions, stranding, fire, lightening, storm, rough and adverse sea conditions, tidal waves, cyclones, theft, barratry or any other crime by any person, faults or errors of navigation or management of the Ship or any other vessel, explosions, breakage of shafts or any defect or unseaworthiness in hull, machinery or appurtenances, equipment , furnishings or supplies of the Ship or launches or vehicles or any defect of the carrier's premises, fault or neglect of pilots, tugs, crew, agents or independent contractors, port closures, delays in allocation and permits to berth the Ship at ports on arrival and seizure of the Vessel under legal process.
Under the heading “Brochures and Flyers”, the Terms & Conditions provide:
Where the brochure contains particulars of our conditions or policy concerning reservation procedures, bookings, cancellations, refunds of fares and itineraries for the Cruise then the brochure so far as they relate to those matters forms part of these Cruise Ticket Conditions and if there is any inconsistency these Cruise Ticket Conditions shall prevail.
Under the heading “Cruise Itinerary” the following appeared:
The carrier will endeavor to follow the Cruise itinerary as described in the brochure and the passenger accepts that the carrier has the right to vary the itinerary or cancel the Cruise if the carrier considers that this is necessary as a result of some Unexpected Event or prevailing inclement weather conditions and the passenger accepts that the passenger will not be entitled to any compensation or a refund of the fare paid should this occur except as provided for in these Cruise Ticket Conditions.
This is the clause at issue in the proceedings. I will refer to this clause as the “cancellation clause” throughout these reasons. Although it was not expressly said, it seems that the applicants do not contend that the whole of the cancellation clause is void, only that part that says: “and the passenger accepts that the passenger will not be entitled to any compensation or a refund of the fare paid should this occur except as provided for in these Cruise Ticket Conditions”. I will refer to that portion of the cancellation clause as the “forfeiture term”.
Under the heading “Applicable Law” it was provided:
So far as these Cruise Ticket Conditions constitute a contract for the supply of services then and in no event shall the liability of the carrier to the passenger for a breach of an express or implied condition or warranty in that respect exceed, at the election of the carrier:
• An obligation on the part of the carrier to supply the services again, or;
• The refund or payment to the passenger of an amount equal to the fare paid by the passenger for the Cruise.
The fourth applicants were in a slightly different position to that of the other applicants. The contract between the fourth applicants and the respondent included a document described as ‘Booking Form 2012’. However, nothing turns upon that difference. There is no dispute that they were bound by the Terms & Conditions just as was each of the other applicants.
The respondent cancelled the holiday on 15 March, 2012. By that time the vessel had not departed Wyndham and none of the applicants had boarded the vessel. However, preparations for the cruise had been undertaken. The vessel had been provisioned for the voyage, fuel had been purchased and crew had been engaged.
The reason for the cancellation of the cruise was the adverse weather conditions that had developed by reason of Tropical Cyclone Lua, another tropical low over the Kununurra and Wyndham regions and a monsoonal trough in the Gulf of Carpentaria.
The adverse weather conditions had an obvious impact upon the safety of the applicants, the respondent’s employees and the respondent’s assets at sea, as well as the ability to transfer the applicants out of the region and safely home.
The respondent determined that the adverse weather conditions were an “unexpected event” within the meaning of the Terms & Conditions. It has not refunded all, or any part, of the fares paid by each of the applicants for the cruise. The respondent asserts an entitlement to retain the whole of the applicants’ cruise fares pursuant to the Terms & Conditions and specifically, the cancellation clause or the forfeiture term.
There is no dispute between the parties that the respondent had the entitlement (if not a positive duty) to cancel the holiday because of the adverse weather conditions. What is in issue is whether, given the point at which the holiday was cancelled, the respondent is entitled to retain the whole of the fare, or whether the cancellation clause, or part of it, is unfair for the purposes of s.23(1) of the Australian Consumer Law.
There is no dispute that each of the applicants held insurance that responded to the cancellation of the holiday so that each applicant has received from their insurer reimbursement of their losses. However, by these proceedings, the applicants’ insurer exercises its right of subrogation to recover from the respondent the amounts paid by the applicants for their cruise or holiday. Later in these reasons I will deal with the basis upon which the applicants contend they are entitled to relief if the cancellation clause, or the offending part of it, is void.
The relevant statutory provisions
The applicants’ case is based upon s.23 of the Australian Consumer Law which provides:
23 Unfair terms of consumer contracts
(1) A term of a consumer contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of operating without the unfair term.
(3) A consumer contract is a contract for:
(a) a supply of goods or services; or
(b) a sale or grant of an interest in land;
to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.
Whether a term of a consumer contract is unfair is determined by the tests set out in s.24 of the Australian Consumer Law. That section is in the following terms:
24 Meaning of unfair
(1) A term of a consumer contract is unfair if:
(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:
(a) the extent to which the term is transparent;
(b) the contract as a whole.
(3) A term is transparent if the term is:
(a) expressed in reasonably plain language; and
(b) legible; and
(c) presented clearly; and
(d) readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.
Section 25 of the Australian Consumer Law provides a list of examples of “the kinds of terms that may be unfair”. None of the parties here seriously suggested that the clause in question fell comfortably within any of the examples in s.25(1), although Senior Counsel for the applicants submitted (without much conviction) that the clause here may fall within ss.25(1)(a) or (k) in that it is:
a)a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract (s.25(1)(a)); or
b)a term that limits, or has the effect of limiting, one party’s right to sue another party (s.25(1)(k)).
In my view, the clause in question arguably does come within both of those examples, but whether or not a particular terms is unfair must depend upon more than the mere categorisation of the clause according to the examples given in s.25.
In addition to the requirement that the clause in question be an unfair term, the consumer contract at issue needs to be a standard form contract to attract the operation of s.23(1) of the Australian Consumer Law. Section 27 of the Australian Consumer Law defines a standard form contract:
27 Standard form contracts
(1) If a party to a proceeding alleges that a contract is a standard form contract, it is presumed to be a standard form contract unless another party to the proceeding proves otherwise.
(2) In determining whether a contract is a standard form contract, a court may take into account such matters as it thinks relevant, but must take into account the following:
(a) whether one of the parties has all or most of the bargaining power relating to the transaction;
(b) whether the contract was prepared by one party before any discussion relating to the transaction occurred between the parties;
(c) whether another party was, in effect, required either to accept or reject the terms of the contract (other than the terms referred to in section 26(1)) in the form in which they were presented;
(d) whether another party was given an effective opportunity to negotiate the terms of the contract that were not the terms referred to in section 26(1);
(e) whether the terms of the contract (other than the terms referred to in section 26(1)) take into account the specific characteristics of another party or the particular transaction;
(f) any other matter prescribed by the regulations.
The applicants argue that:
a)the clause entitling the respondent to forfeit the fare paid by each applicant is:
i)contained in a consumer contract that is a standard form contract;
ii)is an unfair term;
iii)is therefore void; and
b)in the circumstances there has been a total failure of consideration
and so the applicants are entitled to a return of the fares paid by them.
The respondent disputes that the contracts in question are standard form contracts and that the clause or term in question is an unfair term. The respondent disputes that the applicants are entitled to a return of the fares paid by them.
Consumer contract
The parties agree that each of the contracts entered into between the applicants and the respondent was a consumer contract for the purposes of Part 2-3 of the Australian Consumer Law.
Standard Form Contract
The applicants contend that the contact between each of them and the respondent was a standard form contract for the purposes of Part 2-3 of the Australian Consumer Law. They rely on the presumption provided in s.27(1) of the Australian Consumer Law. The respondent did not suggest that s.27(1) was not engaged, but rather sought to prove that the contracts were not standard form contracts.
Section 27(2) of the Australian Consumer Law sets out matters that the Court must take into account in determining whether a contract is a standard form contract. Given the way in which s.27(1) operates to require the Court to presume that a contract alleged to be a standard form contract is such a contract unless another party to the proceedings proves otherwise, it must be intended that the matters set out in s.27(2) be taken into account so as to inform the Court’s decision about whether another party to the proceedings has proved otherwise.
The respondent argued that it had proved that the contracts with the applicants were not standard form contracts. It sought to prove that there was the potential for the applicants to ask the respondent to vary or to “waiver any clause in that contract”. However, the argument was not put very forcefully or with any conviction. The evidence does not support the submission.
The respondent called evidence from Mr Grant Moffitt, a director of the respondent company. He gave evidence that the respondent’s booking enquires were handled by his sister Jill Moffitt, a staff member of the respondent. Her role was to handle “all the sales and administrative aspects of the business”. Ms Moffitt did not give evidence.
According to Mr Moffitt, customers wishing to book a “package” had the option of booking online via the respondent’s website or personally over the telephone. When booking online, the potential traveller would be sent written materials from the respondent which comprised a booking form, an Itinerary and the Terms & Conditions offered by the respondent.
Potential travellers who wished to make a booking online were directed to download and print two PDF documents, namely a booking form and “a cruise terms and conditions document”. They were the same forms as those posted to people who made telephone enquiries.
The forms and the Terms & Conditions in particular were prepared by, or for, the respondent before there was any discussion with any of the applicants. They were, in that sense, standard, or pro-forma terms and conditions.
Whether an enquiry came by telephone or via the respondent’s website, the forms needed to be completed in paper form and returned by either post or email to the respondent. Once the relevant booking form was complete, a tax invoice was raised for payment by the passenger.
Documents within the bundle of documents comprised in exhibit 1 show that parts of the agreements that the applicants had with the respondent were not the same. Various matters differ from applicant to applicant such as the amount paid and the precise travel to be organised by the respondent for each particular applicant (or couple of applicants where two were travelling together). For example, the first applicants booked what is described in their tax invoice as a “Fare” (2 @ $7,495) and “Extra Holiday Package (2 @ $500) whereas the fifth respondent’s invoice refers only to “Fare” (1 @ $7,495).
Notwithstanding that, the respondent did not suggest that those differences were important in this case. The argument proceeded on the basis that the Terms & Conditions (pages 1 – 4 of exhibit 1) applied to each of the relevant contracts at issue in this case, irrespective of whether those contracts were for what is described as the “Fare” or the “Fare” and “Extra Holiday Package”.
That each contract was not identical to any of the other contracts was potentially important because ss.23(1)(b) and 27 refer to a standard form contract, not standard form terms or standard form terms and conditions. In that respect, little precision was put to the identification of the documents that went to make up the contract for each applicant. On the evidence, it seemed to consist of a booking form (although the booking forms for each of the applicants are not in evidence) the document entitled “Kimberley Discovery Terms & Conditions” and arguably, the document headed “Darwin to Broome:” which was incorporated as a brochure for the purposes of the clause in the Terms & Conditions headed “Brochure and Flyers”.
The reference in ss.23(1)(b) and 27 of the Australian Consumer Law to standard form contract might suggest that the whole of the contract must be in identical and immutable terms on each occasion it is used by the party promulgating it, rather than there being variations in the terms. Perhaps it does not. Here, the contracts for each of the applicants were not in identical terms, although the Terms & Conditions formed part of each contract. However, the point was not the subject of argument and I pass from it without further comment.
The booking form and the Terms & Conditions were both posted on the respondent’s website and made available to potential travellers as part of the information that was sent to them if they made a telephone enquiry. The respondent did not submit that there was any indication in that material to suggest that a would-be traveller could negotiate with the respondent about the content of that document or that the content of the document might in any way be varied. I accept the applicants’ submission that the Terms & Conditions were presented as a “take it or leave it” proposition.
There is no evidence that the contracts, and specifically, the Terms & Conditions were negotiated and the terms settled separately with each applicant. Mr Moffitt did suggest in his evidence that none of the applicants indicated to the respondent (presumably through Ms Moffitt) that they were unhappy with, or wished to alter, any of the terms set out in the Terms & Conditions prior to making their booking. None of the applicants gave that evidence either. Further, Mr Moffitt does depose that: “If one of the customers had raised an issue with one of the terms or conditions, I would have negotiated with the customer on a case by case basis to see if some mutually agreeable arrangement could be made”. But Mr Moffitt gave no evidence of ever having done that with any other would-be travellers. Moreover, Mr Moffitt gave no evidence that the respondent’s willingness to negotiate about the terms and conditions was telegraphed to the applicants or any of them. In those circumstances, I am not satisfied that the applicants or any of them were given an effective opportunity to negotiate the terms of their contracts.
There was no attempt by the respondent to demonstrate that the Terms & Conditions took into account the specific characteristics of any of the applicants. Mr Moffitt did give evidence of concessions made by the respondent when clients had found themselves in difficulty and unable to undertake particular travel, but those arrangements were made after the relevant travel contract had been made, not before. Those occasions provide no evidence that the respondent was willing to negotiate about the terms and conditions upon which travel was offered to customers before they completed their booking.
The respondent argues that the following matters indicate flexibility on the part of the respondent and flexibility within the terms of the relevant contracts:
a)the invocation at the commencement of the Terms & Conditions: “Please read these Cruise Ticket Conditions carefully.”;
b)the recommendation at the commencement of the Terms & Conditions that all passengers purchase cruise cancellation and interruption insurance;
c)the fact that passengers are invited to choose the type of share accommodation they wish to have on the vessel;
d)the fact that the fare paid is not forfeited in full in all circumstances but the extent to which it is forfeited is dependent upon the circumstances of the cancellation;
e)the term which expressly contemplates variations to the Terms & Conditions: “No variation or waiver of any term or condition of these cruise ticket conditions will have any effect unless they are in writing and signed by the carrier’’.
However, in my view, those matters do not indicate any flexibility either on the respondent’s part before contract formation, or within the Terms & Conditions themselves. Most of the factors listed by the respondent are warnings and imperatives. They are not couched in the language of negotiation. Moreover, looked at objectively, the variation/waiver clause is not an invitation to passengers to negotiate with the respondent about the terms of the contract before it is concluded. It suggests the possibility of variation or waiver, but in my view, not until the contract has been formed. Mr Moffitt’s evidence indicates that in some circumstances, the respondent has waived the benefit of the cancellation clauses, but that has occurred after the contract was made.
Whilst there is a clause in the Terms & Conditions which suggests that the fare paid by a passenger is not forfeited in full in all circumstances but the extent to which it is forfeited is dependent upon the circumstances of the cancellation, that clause applies to cancellations by passengers, not to cancellations by the respondent pursuant to the cancellation clause.
I am not satisfied that the respondent has proved that the contracts with each of the applicants in this case were not standard form contracts for the purposes of Part 2-3 of the Australian Consumer Law. I must presume, and accordingly I find, that they were standard form contracts.
Unfairness
The applicants contend that the term that entitled the respondent to retain the whole of the fare if the cruise was cancelled due to an unexpected event was an unfair term for the purposes of Part 2-3 of the Australian Consumer Law. The phrase unfair term is given meaning by s.24(1) of the Australian Consumer Law. A term will be regarded as unfair if it meets three cumulative requirements. First, the term must cause a significant imbalance in the parties’ rights and obligations under the contract. Second, the term must not be reasonably necessary to protect the legitimate interests of the party advantaged by the term. Third, the term must cause financial or other detriment to a consumer if it were to be relied upon.
But at what point in time should unfairness be judged? It might be judged as at the time the contract was formed, or perhaps at a later point when account can be taken of how the contract has operated and the way in which it has affected the parties in the circumstance of the particular case.
This issue is important in these proceedings because many of the matters relied upon by the respondent to demonstrate that the clause is not unfair occurred well after the relevant contracts were formed.
For example, in his affidavit filed on 27 May, 2013 Mr Moffitt deposes:
44 While the weather conditions were being monitored, the company organised temporary arrangements for the passengers. These arrangements (collectively referred to herein as “the temporary arrangements”), included:
(a) accommodation, meals and drinks at the Kununurra Country Club on 13, 14 and 15 March 2012;
(b) tourist activities in Kununurra 0n 13 and 14 March 2012;
(c) meals and drinks at the Kununurra Country Club on 16 March 2012.
…
52 Following my decision to cancel the cruise, the company organised the passengers with alternative arrangements. These arrangements (collectively “the alternative arrangements”) included:
(a) Evacuation to Broome on a chartered flight;
(b) Accommodation and meals in Broome from 16 March to 19 March 2012 at which time commercial flights resumed operation following a closure due to adverse weather conditions;
(c) Provision of sightseeing and other recreational activities.
53 I was willing to make these arrangements which went beyond the scope of the contract at the company’s own expense to ensure that each of the passengers was able to make a safe and comfortable trip home.
Senior Counsel for the applicants submitted that the determination of unfairness is to be made at the time the contract is formed. He drew an analogy with cases that deal with the interpretation of contracts where courts are not concerned to look to subsequent events to determine what the terms of a contract might mean. Senior Counsel submitted that, in any event, the particular events that the respondents rely on regarding the question of unfairness – referred to in Mr Moffitt’s affidavit above as the “temporary arrangements” and the “alternative arrangements” – involved actions that the respondent was not obliged to perform and the applicants were not entitled to receive under the contracts. Senior Counsel characterised the temporary and alternative arrangements as gratuitous services that the respondent was not required to provide under the contracts.
Counsel for the respondents argued that subsequent events can and should be taken into account in the inquiry as to unfairness. His argument was that s.24(1)(b) of the Australian Consumer Law, by referring to “legitimate interests” of the party advantaged by the alleged unfair term “presupposes ... individual fact scenarios”. Counsel contrasted this section with the Contracts Review Act 1980 (NSW) as well as the “law of unconscionability”. He argued that s.24(1)(b), by contrast to these laws, is “very specific about factual circumstances”. I understood this argument to mean that even though the respondent was not contractually obliged to provide the temporary and alternative arrangements to the applicants, the respondent did so in order to protect its legitimate interests. To provide those gratuitous services, the respondent needed funds to do so and those funds came from the fares paid by the applicants and forfeited by the respondent. Counsel submitted that if the respondent had in fact provided refunds immediately upon the cancellation of the cruise, it would not have been able to fund the evacuation of the applicants form the cyclone affected zone. If the respondent was unable to evacuate travellers in such situations, those travellers would be distressed and disgruntled, which in turn would damage the respondent’s referral business, repeat business and goodwill – its legitimate interests.
In my view, the appropriate point in time to assess unfairness for the purposes of s.23(1) of the Australian Consumer Law is the time at which the contract is formed. I reach that conclusion because:
a)Section 23(1) is concerned with whether the relevant term is void. Ordinarily, as a matter of the law of contract, a term that is void, is void ab initio. It is usually void for reasons that have occurred before or at the time of the formation of the contract and whether a term or a contract is void is independent of any election of the parties to the contract. A contract is voidable, generally speaking upon a party to the contract – the innocent party – electing for it to be so. That election must necessarily occur after the contract has been formed;
b)Section 24(1)(a) requires a prospective inquiry – “A term of a consumer contract is unfair if . . . it would cause a significant imbalance in the parties’ rights and obligations arising under the contract”. The subsection does not provide that a term is void if it did cause a significant imbalance between the rights of the parties. That it did cause such an imbalance might be relevant (such matters might be taken into account perhaps under s.24(2) - a court may take into account such matters as it thinks relevant), but the subsection expressly contemplates a prospective inquiry to ascertain the existence of the first element of unfairness;
c)so too, ss.24(1)(b) and 24(1)(e) contemplate a prospective inquiry; and
d)the text of s.24, more generally, focusses attention upon the term sought to be impugned. It does so by directing attention to the form of the contract, the language of the term, whether it is transparent, the place of the term in the overall contract and the effect of the term – what work it would do in the context of the contract as a whole.
Significant imbalance
The first of the three elements that must be present before a term in a consumer contract can be found to be unfair is whether the term would cause a significant imbalance in the parties’ rights and obligations arising under the contract.
In his written submissions, Senior Counsel for the applicants argues:
The application of s.24(1)(a) should lead the Court to conclude that the retention of the full fare, where the respondent cancels the cruise, and where no part of the cruise has been undertaken, causes a significant imbalance in the parties’ rights and obligations under the contract. Each applicant has discharged his or her obligation to pay the full fare, yet none have enjoyed the right to participate in the cruise for which they have paid. On the other hand, the respondent keeps the full fare without being obliged to conduct the full cruise.
The respondent cavils with the premise that “no part of the cruise has been undertaken”. Counsel for the respondent contends that:
[t]he respondent did fulfil a significant part of the bargain in getting the applicants to the port of Wyndham prior to the unique set of weather circumstances and then accommodating them in Kununnurra and flying them to Broome including sightseeing and other recreational activities.
The respondent suggests two further reasons for rejecting the applicants’ submission. First, Counsel submits that:
[t]he Respondent’s treatment of the safety of the passengers as the priority of the Respondent’s obligations demonstrates a significant weighting of the bargain in favour of the Applicant.
Second, Counsel submits that the cancellation clause protects the respondent commercially in ways that in turn protects travellers such as the applicants. That is because, in short, it provides funds for their evacuation; furthermore, without such a clause it is conceivable that an operator such as the respondent might elect to undertake a dangerous sea voyage to ensure its costs are met.
I reject these arguments. The most obvious basis for rejection is that the submissions are premised on the assumption that the respondent will act in ways that it is not contractually obliged to act in the event that a cruise is cancelled. As was apparent from submissions, a cruise might be cancelled for any number of reasons and at any point in time up to the conclusion of any scheduled cruise. There is nothing in the contract that obliges the respondent to repatriate any passengers should the cruise be cancelled. The argument relied upon the good will of the respondent towards its customers, something that might wax and wane.
Section 24(1)(a) requires an inquiry into the balance “in the parties’ rights and obligations arising under the contract”. Actual conduct is irrelevant. That the respondent has fulfilled some part of its bargain and protected the applicants in ways that, according to Mr Moffitt’s own evidence, “went beyond the scope of the contract at the company’s own expense” is beside the point. As the applicant submits, the issue is “whether a term of a contract is unfair, not whether the overall conduct of the Respondent is or was unfair”. Section 24(1)(a) directs attention to the rights and obligations arising under the contract. That is a matter for objective assessment according to those terms properly construed.
The respondent relied heavily on the specific context in which cancellation in this case occurred. However, the cancellation clause would allow the respondent to cancel in other contexts. The circumstances in which the respondent might cancel a cruise are defined by the cancellation clause and the definition of “unexpected event”. But that definition is very wide.
If it was reasonable to test whether there was a significant imbalance in the rights and obligations under the contract between the parties by reference to post-formation conduct, then it is not difficult to envisage different factual circumstances where a cruise might be cancelled that did not involve the safety of those who were to undertake the voyage.
For example, according to the respondent’s evidence, would-be travellers sign the relevant agreements and make full payment weeks before a scheduled cruise. But assume that before the respondent had done anything in preparation for it, some catastrophe befalls the vessel that makes it unseaworthy and renders it in need of expensive repairs. Alternatively, the cost of an essential requirement such as fuel might rise so significantly as to turn the venture from a profit-making enterprise to a loss making enterprise. The respondent faced with one of these scenarios might, before the cruise is scheduled to commence, cancel the cruise.
Under the cancellation clause, the respondent would be entitled to cancel the cruise and keep the fares paid by the passengers. There is no obligation on the respondent to do anything for the passengers who may not have even left their homes at the time of the cancellation.
When I posited similar factual scenarios to Counsel for the respondent during submissions, he responded that this would not occur because the respondent would be unlikely to risk its commercial interests in that way. However, s.24(1)(a) is concerned with rights and obligations under the contract, not the likelihood of one or other of the parties to that contract acting in ways not contemplated by its terms. It is the rights and obligations that arise under the contract that are tested under s.24(1)(a), not specific actions or events.
I find that the forfeiture term results in a significant imbalance, within the meaning of s.24(1)(a) of the Australian Consumer Law, in the rights and obligations of the applicants and the respondent arising under the contracts in this case. The forfeiture term allows the respondent to cancel at any time before it commences a holiday or cruise and keep the applicants’ payments. In such circumstances, the respondent is obliged by the terms of the contract to do nothing. I find that the respondent is advantaged by the cancellation clause in each particular contract.
Reasonably necessary to protect legitimate interests
The second of the elements necessary to establish that a term is unfair is the requirement that the term is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term. To facilitate proof of that requirement, the Australian Consumer Law provides in s.24(4) that for the purposes of s.24(1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise. That is to say, s.24(4) creates a rebuttable presumption against reasonable necessity. In those circumstances the onus, both legal and evidential, falls to the respondent to demonstrate that the cancellation clause was reasonably necessary to protect the legitimate business interests of the respondent.
In my view the first step towards rebutting the presumption is for the respondent to identify the legitimate business interests said to be protected by the term. Although it was put a number of ways, the first legitimate interest identified here was the respondent’s reputation in the market in which it operated – the goodwill of its business in all its forms. In my view that is plainly a legitimate business interest that the respondent is entitled to protect.
The second legitimate interest has two aspects. First, the evidence shows that the respondent has expended funds on preparations for the cruise. It had provisioned the vessel and had engaged crew to whom it had obligations by way of wages and the like. Second, as I understand the respondent’s argument, to protect its business reputation in the way that it thought necessary would cost money. Although it was not put in these terms by the respondent, the second legitimate interest identified by the evidence sought to be protected by the cancellation clause might best be described as the preservation of the financial well-being of the respondent.
The second step in rebutting the presumption against reasonable necessity is for the respondent to demonstrate that the term was reasonably necessary in order to protect the legitimate interests identified as warranting protection. The use of the word “reasonably” immediately tends to suggest that the inquiry is an objective one. But the respondent took a different approach.
The respondent argued that the utilisation of the fares that it was entitled to retain by reason of the cancellation clause provided the funds necessary to meet the costs associated with the preparations undertaken for the cruise and its actions taken for the welfare of the applicants consequent upon the cancellation of the cruise. It was able to protect its goodwill by defraying the costs of doing so from the funds it was entitled to retain from the applicants. It also had a fund from which to meet the costs incurred in preparing for the voyage. The availability of the fund from which all of those expenses could be defrayed worked to protect the respondent’s legitimate interest in its business goodwill and financial position.
But the respondent’s position was argued on the basis of what it had done in this case, after the contract had been cancelled. And in that light, the argument has some merit. However, when viewed against the contract as a whole and when other circumstances in which the term might conceivably operate, the subjective and focused approach adopted by the respondent is found wanting. On the respondent’s approach, whether a particular term in a contract is reasonably necessary to protect the legitimate business interests of a party advantaged by that clause might well vary from time to time and will, perhaps amongst other things, depend upon the actions, both obligated and gratuitous, by the respondent. Much of the case advanced by the respondent here was built upon the actions that it had taken after the cancellation of the cruise for the welfare of its customers. Had it not taken those actions however, and whether or not it had expended anything on preparation for the cruise, it would still have been entitled to retain the applicants’ fares according to the forfeiture term.
In my view, an objective approach to the assessment of reasonable necessity is required for the purposes of s.24(4) of the Australian Consumer Law. The respondent must provide some basis for determining that the impugned term passes the test of reasonable necessity. What is reasonably necessary in respect of any particular term must be informed by evidence. In the present case, the evidence is confined to what the respondent had done after the contracts had been formed. That evidence might have been useful if there was other evidence that established the respondent’s business operations and practices more generally. Senior Counsel for the applicants made this point when he submitted that:
this is not a case where, for example, the respondent has put on evidence that in the conduct of its business it knows that out of the fare of $7495 there’s x per cent that goes to fixed costs; there’s y per cent that goes to variable costs which are incurred within a certain time before the cruise; and there’s a balance of profit.
The only evidence from the respondent was that as part of organising this cruise the respondent incurred some costs. The evidence in that respect was limited.
Exhibit 5 contains receipts and invoices for the respondent’s costs associated with perishable food, crew wages and expenses, and fuel for this particular cruise. Mr Moffit, during examination in chief, described these documents as “receipts or invoices for food incurred by the vessel for that particular cruise and also wages and the fuel purchased for the boat.” The receipts and invoices are from supermarkets, butchers, fishmongers, and a marine fuel station. There are also tables of staff rostering and wages.
But there was no evidence to suggest that as a matter of course, such costs were ordinarily incurred over a particular period, or according to a particular pattern, leading up to the commencement of a cruise. If there was evidence of that nature and if the forfeiture term provided for a “sliding scale” of the amount that would be retained by the respondent in the event that the respondent cancelled a cruise, it might be the case that such a term would be reasonably necessary.
The terms of the contracts in this case provide an example of the type of term that provides for such a sliding scale. There is a clause in the Terms & Conditions that deals with cancellation of the contract by a passenger:
CANCELLATION AND REFUND POLICY
Notification of cancellation must be received in writing. At the time we receive your cancellation the following penalties will apply:
More than 30 days prior to departure - 30% of the relevant fare (This can be used on another cruise this season or next but not refunded) 21-30 days prior to departure - 50% of the relevant fare (This can be used on another cruise this season or next but not refunded) 20 days or less prior to departure or no-show - 100% of the relevant fare
Leaving aside the unfortunate reference in that clause to the amounts forfeited being “penalties”, the clause affords an example of an attempt to balance the rights and obligations of each of the parties to the contract. Coupled with some evidence to demonstrate that the amounts to be forfeited are a genuine estimate of the loss that the respondent would be likely to suffer if the contract was cancelled, a court might quickly conclude that such a term was not unfair for the purposes of s.23(1) of the Australian Consumer Law.
Whilst s.24(2) allows the Court to take into account “such matters as it thinks relevant” and the respondent used that opportunity to give evidence about the particular circumstances of the cruise. It was submitted that the Court should consider, inter alia, the remoteness of the voyage, the inhospitable nature of such areas “which are highly susceptible to weather variations”, the advanced preparation and planning required of the operator in such circumstances, the employment of staff in such locations, the provisioning and refuelling of vessels, meals, accommodation, and the elderliness of the passengers. But whilst the first and second items in this list are self-evident, the balance is not. The balance requires evidence, and in my view, more than the evidence that the respondent chose to lead in this case.
Counsel for the respondent also speculated about what would occur if the respondent had provided a more “limited” evacuation response to the applicants. This submission was perhaps intended to address the applicants’ query as to why the full-fare should be retained, as opposed to some lesser amount, as a contingency fund protecting the respondent’s interests. Counsel for the respondent submitted that a
limited or degraded response would also create disruption in the individuals, and also cause a great deal of loss of good will and lack of repeat business, again a legitimate interest to be protected.
The problem with this argument is not only the lack of a persuasive breakdown of costs in what is otherwise mere speculation, but the fact that retaining the entire fare is perhaps just as likely to cause a loss of good will and lack of repeat business. The respondent’s strong suggestion in the Terms & Conditions that all passengers obtain their own travel insurance, highlights, in my view, the unfairness of the clause.
I conclude that the respondent has not proved that the cancellation term is reasonably necessary in order to protect the legitimate interests of the respondent.
Detriment
The respondent argues that the cancellation clause and the forfeiture term causes benefit, as opposed to detriment, to passengers because it “saved lives . . . provided a safe passage home”.
I do not accept that argument. Whilst I accept the respondent’s evidence that it ensured that the applicants were properly accommodated, in some respects entertained and then safely transported out of northwest Western Australia after the cruise was cancelled, the respondent was not obliged by the contract with each of the applicants to provide any of those things. As Senior Counsel for the applicant insists, the respondent’s provision of a safe passage home for the applicants was done extra-contractually. Section 24(2)(b) requires the Court to take into account the contract as a whole. I was not taken to any clause in the contract that created an obligation on the part of the respondent to provide the benefits it claims it provided to the applicants upon the cancellation of the cruise, nor any entitlement on the part of the applicants to such.
I find that the term in question, on its own and in the context of the contract as a whole, would cause detriment, and in particular financial detriment, to people who have contracted with the respondent for a cruise if it were to be applied or relied on according to its terms.
Finally, for the sake of completeness, and as this issue was raised briefly in submissions, the fact that the applicants in this case were insured is irrelevant to the question of detriment. There is no evidence to suggest that all passengers are likely to take up the respondent’s invocation to purchase travel insurance.
Transparency
I am required by s.24(2) to also consider the extent to which the relevant clause is transparent.
According to s.24(3) of the Australian Consumer Law, a term is transparent if the term is:
a)expressed in reasonably plain language; and
b)legible; and
c)presented clearly; and
d)readily available to any party affected by the term.
There was no dispute that the term was transparent. I find accordingly.
Conclusions – s.23(1) of the Australian Consumer Law
In the course of final submissions, Senior Counsel for the applicants said (at T60):
In paragraph 4 of the respondent’s submissions, it is contended that we say that a significant number of terms are unfair. We say that one term is unfair – that under the heading, Cruise Itinerary, which admittedly, read with the limitation of carrier’s liability, means that there’s no refund, and that the passenger cannot, for want of other words, sue the carrier for any damages. But we don’t say that the unexpected event clause is unfair. We don’t say that the non-transferrable clause is unfair. We say it’s the forfeiture of the entire fare which is unfair.
Notwithstanding that, little precision was put by either party to whether it is the whole of the cancellation clause that should be found to be void, or whether the forfeiture term can be severed from the balance of the cancellation clause and found to be void (subject to it being found to be unfair). In my view, the latter course is open because the cancellation clause has a number of operative phrases and the forfeiture term can be severed without affecting the balance of the cancellation clause.
I am satisfied that the forfeiture term in each of the contracts between each of the applicants and the respondent:
a)would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
b)is not reasonably necessary in order to protect the legitimate interests of the respondent, the party who is advantaged by the term; and
c)it would cause detriment to the applicants if it were to be applied or relied on.
I am satisfied and find that the forfeiture term in each of the contracts between each of the applicants and the respondent was unfair within the meaning of that term as used in s.23(1)(a) of the Australian Consumer Law.
Further, I am satisfied, as I have set out above, that the contracts were standard form contracts.
Consequently, I am satisfied that the forfeiture term is void by reason of s.23(1) of the Australian Consumer Law.
Remedies
Without the forfeiture term the applicants are not precluded by the terms of the contracts from pursuing a refund of the fares that they have paid. That is the relief that is sought here on the basis that the consideration for which the applicants paid their fare has wholly failed. They relied upon Baltic Shipping Company v Dillon (1993) 176 CLR 344.
In Baltic Shipping Mason CJ discussed the situation where an innocent party pays money in advance under a contract in expectation of the other party performing its entire obligations (e.g. a passenger pays for a cruise in advance, expecting to go on an entire cruise). His Honour held (at page 350) that the innocent party cannot recover that money unless there has been a total failure of consideration. And if there is incomplete performance, but the innocent party nevertheless receives a “substantial part of the benefit expected under the contract”, there will not be a total failure of consideration.
Did the applicants receive a substantial part of the benefit expected under the contracts in the present case? The applicants contend that they did not and the respondent contends that they did.
To determine the true position, it is necessary to understand what it was that the respondent contracted to provide to the applicants. Much effort in submissions went towards establishing whether the relevant contract was for a “tour package” or a “cruise only”. The applicant submitted:
Presumably, it will be argued [by the respondent] that as the applicants flew to Darwin, stayed there, and were transferred to Kununurra, and stayed in Broome, there was not a total failure of consideration. That argument should not be accepted. What the applicants primarily contracted for, and what is reflected in the itinerary, was the cruise. None of the cruise was provided. It is admitted that the vessel did not disembark from Wyndham. The cruise fare also entitled the applicants to ‘exclusive sightseeing opportunities’ referred to in the itinerary. None of these were provided.
Indeed, the respondent submitted that:
[t]here has been a considerable benefit to the passengers whose tour had commenced and significant resources deployed for the enjoyment of the passengers after the cancellation. They enjoyed Darwin, Kununurra and tour to Wyndham and back as well as flights to Broome and other activities.
Several witnesses gave oral evidence as to what they thought they had bargained for. There was a mixture of responses. One witness said that his primary purpose was for the cruise, whereas another witness testified that she had bought a “package tour from Adelaide to Darwin” as well as the cruise.
I have set out the clause that appears under the heading “Brochures and Flyers” at the commencement of these reasons. Whether or not the document described above as the “Itinerary” is a brochure or flyer was not addressed in submissions. As I noted earlier, little precision was put to the identification of the documents that went to make up the contract for each applicant. The Itinerary contains the heading:
DARWIN TO BROOME:
March 13th to March 26th, 2012: $7,495 per person twin share
Incorporating a cruise between Wyndham and Derby plus all transfers
(my emphasis).
The Itinerary further provides:
All transfers are inclusive in the price and will be via a flight from Darwin or Kununurra and a bus transfer from Kununurra to Wyndham, at the start of the cruise, and a bus transfer from Derby to Broome at the conclusion of the cruise . . . Also included in the price are all excursions, meals and GST.
(my emphasis)
The Itinerary outlines, in considerable detail, the itinerary for the 14 days of the cruise. It is significant, I think that the Itinerary commences with:
Day 1:
Arriving at the jetty in Wyndham, you will be greeted onboard Discovery One with a welcoming drink by our friendly crew. Settle in, get to know your fellow travellers and relax as we serve you dinner under the tropical stars, while you begin your journey of a lifetime cruising down Cambridge Gulf towards Berkeley River.
and concludes:
Day 14:
Relax on the top deck and soak up the 360 degree views as we enjoy the final stretch of cruising to the township of Derby. This afternoon we arrive back at Derby Jetty where we bid you farewell, hoping that you will take with you memories to last a lifetime. Passengers travelling to Broome will be transferred by coach, while passengers staying in Derby will be transferred to their accommodation.
The itinerary clearly suggests that the focus of the travel is upon the cruise. Getting to Wyndham and away from Derby are incidental to the main object of the contract and itinerary, namely the cruise.
The document described as “Booking Form 2012” that formed part of exhibit 1 in these proceeding (i.e. the booking form that was used specifically in the case of two of the applicants) allowed would-be travellers to elect a cruise and a point of departure. It does not refer to transfers, meals, accommodation, or activities.
Whether the contract was for a “tour package” or “a cruise” only is a sterile argument. The respondent contracted with the applicants to receive them in Darwin from their nominated point of departure (which in most cases was Adelaide), conduct them to Wyndham via Kununurra, provide the subject cruise, disembark them at Derby. That the fifth applicant also engaged the respondent to provide travel between Adelaide and Darwin does not matter. In my view, that does not detract from the primary purpose of the contract, namely to provide a 14 day cruise along the Western Australian coast. The issue is whether the applicants received a “substantial part of the benefit expected under the contract” as I have just described.
In my view, they did not. The applicants received very little of the benefits the respondent was obliged to provide to the applicants under the contract. I emphasise “under the contract” because the principle in Baltic Shipping concerns contractual performance. The “temporary arrangements” and the “alternative arrangements” deposed to by Mr Moffitt did not form part of the respondent’s obligations under the contract.
The applicants were flown from Darwin to Kununurra and were accommodated in both Darwin and Kununurra. The respondent was obliged to do that for each applicant. But that is all that the applicants received of the benefits that were otherwise to be provided by the respondent under the relevant contracts.
I am not satisfied that any of the applicants received a substantial part of the benefits expected under the relevant contracts. I find that there has been a total failure of consideration in respect of each applicant.
They are entitled, I find to restitution of the fares that they have paid to the respondent. There will be orders accordingly.
Remedy under the Australian Consumer Law
The applicants argued, in the alternative to their primary claim for restitution, that they should be entitled to damages under s.236 of the Australian Consumer Law. Although it is not necessary to decide this point, I have come to the conclusion that no relief is available under that provision in this case.
Section 236 provides that:
(1) If:
(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and
(b) the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
Section 23(1) of the Australia Consumer Law is not concerned with conduct which might be said to contravene a provision of Chapter 2 or 3 of the Australia Consumer Law. Moreover, the conduct in this case which has aggrieved the applicants is not conduct which contravenes the Australia Consumer Law. The respondent has acted upon a clause in the relevant agreements with the applicants. Notwithstanding that a court has now found that clause is void, that conduct does not contravene the Australia Consumer Law.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 September, 2015.
Date: 2 September 2015
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