Flight Centre Ltd v Reale
[2012] QCAT 523
•17 May 2012
| CITATION: | Flight Centre Ltd v Reale [2012] QCAT 523 |
| PARTIES: | Flight Centre Ltd (Applicant/Appellant) |
| v | |
| Maria Reale (Respondent) |
| APPLICATION NUMBER: | MCDO2071-11 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 1 May 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 17 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent must pay to the applicant $7,276.00 by 30 June 2011. |
| CATCHWORDS: | Estoppel – where earlier proceeding involving similar subject matter – where applicant’s claim at the time of the earlier proceeding not sufficiently crystallised to defend by way of set off or cross claim Reale v Flight Centre Ltd [2011] QCATA 322 paragraph 2 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Flight Centre was represented by Ms Briggs |
| RESPONDENT: | Ms Reale was self represented as well as being represented by Mr Hutchinson |
REASONS FOR DECISION
On 24 February 2010 Ms Reale booked flights from Australia to Europe through Flight Centre. She used her Commonwealth Credit Card to pay for the flights in the sum of $7,267.00.
On 24 June 2010 Ms Reale, one other person and a child travelled on Korea Airlines to and from Europe however, during the course of the trip there was a problem with one of the sectors.
Ms Reale expected that the itinerary included her flight from Milan to Paris however no tickets were issued for this sector and she had to pay $1,580.00 at the gate for the three people to travel.
On her return to Australia in July 2010, she made a claim against Flight Centre for the cost of that sector on the basis that it was included in the contract that she entered into with Flight Centre. Flight Centre was not prepared to pay for the whole claim so on 14 October 2010 she commenced minor civil dispute proceeding number 2948-10 in the Tribunal in Brisbane. The relief sought in that claim was:
“4.The flights and carriers were as detailed in the itinerary provided by the respondent.
5.The respondent failed to book the Linate/Paris leg of the flight as represented, and failed to tell me, causing loss and damage. The respondent admits its failure.”
Flight Centre defended the application on the basis that although it was included in the itinerary, Ms Reale did not pay for that sector in the $7,267.00 paid to Flight Centre. It also contended that had it been paid for it would have cost the same so she was not out of pocket.
The learned Adjudicator who heard that matter made the decision that Flight Centre should pay to Ms Reale $1,580.00 as claimed.
Not only did Ms Reale bring a claim for the cost of the flights, she also contacted the Commonwealth Bank, her credit card provider, to complain that she did not receive the goods and services charged for and sought a refund of the credit card payment of $7,267.00.
On 8 October 2010 the Commonwealth Bank notified Flight Centre of this claim and sought information. Information was supplied in due course. However, in the meantime Ms Reale had already commenced the QCAT application for the payment of the $1,580.00.
After the hearing on 17 January 2011, Flight Centre paid the ordered sum to Ms Reale on 24 January 2011.
It was not until 2 February 2011 that Flight Centre received notification from the Commonwealth Bank that it had reversed the debit and refunded the full cost of the charge to Ms Reale, that is, $7,267.00.
Flight Centre made demand of Ms Reale for that sum and, not surprisingly, when it was not paid, filed an application in the minor civil disputes jurisdiction of the Tribunal in July 2011 claiming recovery of $7,267.00.
There were interlocutory skirmishes resulting to the Appeal Tribunal but ultimately the substantive matter came on for hearing before me on 1 May 2012. The parties agreed that there was no essential dispute of fact and both parties had already filed submissions in writing.
Ms Reale’s defence to the claim, in view of the fact that she had the travel recorded, billed and taken[1] is that Flight Centre is estopped from now recovering the claim. She contends that the material facts upon which the applicant now alleges in this proceeding are so relevant to the subject matter of the finalised proceeding being MCD2948-10, that the applicant, exercising reasonable diligence, should have raised them in the earlier proceeding. This is known generally as an Anshun estoppel.[2] In Anshun the majority of the court said:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in one proceeding.”
[1] Reale v Flight Centre Ltd [2011] QCATA 322 paragraph 2.
[2] Port of Melbourne Authority v Anshun (1981) 147 CLR 589.
It becomes immediately obvious when applying this principle to the factual circumstances of this case that Flight Centre could not have, at the time the original claim for a refund was heard and determined, cross claimed the amount of the reversal of the credit card payment or defended by way of a set off, on that basis. Flight Centre did not become aware that there was a debit reversal until after the original proceeding was decided and they had paid out the judgment debt. The only knowledge Flight Centre had at the time of the hearing of the original proceeding was that Ms Reale had made a claim for a debit reversal and the Commonwealth Bank and sought information from Flight Centre and “not to worry about it”.[3]
[3] Statement of Mr Hutchinson dated 1 May 2012.
Given Flight Centre’s state of knowledge at the time, it could not have reasonably anticipated the charge would be reversed firstly because Ms Reale had been successful in the earlier proceeding, and secondly because Ms Reale had the full benefit of the fares purchased from Flight Centre.
In these circumstances, it would be quite unconscionable for Ms Reale to have both the benefit of the travel as well as the money she paid for it.
I have therefore come to the conclusion that an Anshun estoppel does not apply in the circumstances of this case. Ms Reale should pay to Flight Centre the amount claimed.
Therefore, there will be an order that the respondent pay the applicant $7,276.00 by 30 June 2012.
0
2
0