Heslop v Goway Travel Pty Limited

[2019] NSWCATCD 84

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Heslop v Goway Travel Pty Limited [2019] NSWCATCD 84

Hearing dates:

8 July 2019

Date of orders:

8 August 2019

Decision date:

08 August 2019

Jurisdiction:

Consumer and Commercial Division

Before:

G.J. Sarginson, Senior Member

Decision:

1. The application is dismissed.

2. If there is an application for costs, the respondent is notify the Tribunal and the applicant in writing by 14 days from the date of this decision that the respondent is making a costs application and include a proposed timetable for written submissions. If a costs application is made, the Tribunal will issue further directions to the parties regarding each party filing and serving written submissions on the issue of costs.

3. Any submissions on the issue of costs are to include whether or not the respective parties consent to the issue of costs being determined on the papers. In accordance with s 50 (2) of the NCAT Act, the Tribunal may determine the issue of costs on the papers and without further oral hearing.

Catchwords:

CONSUMER LAW---Breach of contract---Breach of the Australian Consumer Law 2010 (NSW)---Whether loss established---Applicable principles---No loss established

Legislation Cited:

Australian Consumer Law 2010 (NSW)

Civil and Administrative Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Fair Trading Act 1987 (NSW)

Cases Cited:

Clark v Macourt [2013] HCA 56 (2013) 253 CLR 1

Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54 (1991) 174 CLR 64

Curtis v Potter & Co Pty Ltd t/as The African Safari Co [2016] NSWCATAP 196

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353

McCrohon v Harith [2010] NSWCA 67

Ng v Filmlock Pty Ltd [2014] NSWCA 389; (2014) 88 NSWLR 389

Robinson v Harman (1848) 154 ER 363

Sacks v Hammoud [2016] NSWCATAP 225

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 (2009) 236 CLR 272

Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140

Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228

Texts Cited:

Carter on Contract (looseleaf); Lexis Advance

Category:

Principal judgment

Parties:

John Heslop (Applicant)

Goway Travel Pty Limited (Respondent)

Representation:

Counsel:

Ms S. Scott (Respondent)

Solicitors:

Sinclair Legal (Applicant)

Breene & Breene Solicitors (Respondent)

File Number(s):

GEN 19/15022

Publication restriction:

Nil

REASONS FOR DECISION

1. The matter was listed for hearing at the Tribunal in Sydney on 8 July 2019. Mr Sinclair Solicitor appeared for the applicant. Ms Scott of Counsel appeared for the respondent. Each party had previously been granted leave for legal representation.

2. Proceedings were filed in the Tribunal on 27 March 2019.

3. The dispute involves a travel agent (‘Goway Travel’) and in particular the conduct of a former employee of the respondent, Ms Lisa Comito.

4. In essence, the applicant claims that he paid $23,246.20 to the respondent for services (being the provision of travel) that were not provided. The application filed by the applicant identifies the amounts as follows:

1. $13,000 on or about 10 December 2014 for return airline tickets and a French river cruise that was “not taken” and Goway Travel had failed to refund this amount or credit it to the cost of future travel;

2. $7,250 on or about April 2017 for payment for ‘Platinum Travel Passes’ for the applicant and his wife that was not reimbursed, despite the promise of a “Goway representative”

3. $2,996.20 on or about 7 June 2017 for a “supplement payment” made by the applicant towards the cost of a “Holland America cruise” in circumstances where the cruise was booked by Goway Travel but the applicant and his wife were informed that the cruise was cancelled due to Goway Travel’s computer system being hacked. The amount of $2,996.20 was not reimbursed or credited to the cost of future travel.

5. The respondent disputes the claim on the relevant basis that: (i) the value of services provided to the applicant and his family regarding trips taken by them over a number of years is $137,729,12 and no loss has been established; (ii) there is no evidence that a payment made by the applicant in December 2014 for an overseas cruise which the applicant says was cancelled was not credited to future travel; (iii) any cause of action in contract for the payment made in December 2014 is out of time under s 79L of the Fair Trading Act 1987 (NSW); (iv) in respect of a ‘Platinum Travel Pass’ issued by Ms Comito that provided for extensive international and domestic travel (including tours and cruises) over a 5 year period, Ms Comito had no actual or ostensible authority to bind the respondent; and (v) no breach contract or breach of any relevant provision of the Australian Consumer Law 2010 (NSW) (‘the ACL’) has been established.

APPLICANT’S CAUSES OF ACTION

6. At the commencement of the hearing, and after the parties had a brief period of discussions outside the hearing room in an attempt to resolve the dispute, Mr Sinclair was asked to identify the applicant’s causes of action, as the ‘Points of Claim’ which had been filed with the applicant’s documents failed to adequately do so.

7. Mr Sinclair initially stated that the applicant was only relying on breach of contract, despite the Points of Claim also referring to an ACL claim. When it was pointed out that the respondent’s Points of Defence had asserted that the payment made in December 2014 was outside the limitation period for the Tribunal to hear that aspect of the claim under s 79L of the FTA, Mr Sinclair sought further instructions, and informed the Tribunal that the applicant was also pursuing causes of action under the ACL.

8. When asked to identify what were the ACL breaches relied upon, Mr Sinclair stated he “could not assist”. The Tribunal pointed out that this was unsatisfactory, because (i) the respondent needed to know what case it had to meet; (ii) the Tribunal needed to know what legal principles it was being asked to apply; and (iii) parties and legal practitioners have a duty under s 36 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘the NCAT Act’) to assist the Tribunal to achieve the just, quick and efficient resolution of the real issues in dispute, which may not occur if a legal practitioner could not identify the causes of action relied upon.

9. After a brief adjournment, Mr Sinclair told the Tribunal that the applicant relied upon were ss 18; 20; and 29 of the ACL. A claim under s 54 of the ACL was tentatively raised, but when the Tribunal pointed out s 54 of the ACL was a consumer guarantee that goods sold in trade and commerce be of acceptable quality and did not apply to services, reliance on s 54 of the ACL was withdrawn. In any event, s 54 of the ACL is clearly inapplicable, as the dispute in this matter involves the provision of services, not goods.

10. No cause of action was raised in the proceedings that the applicant had paid monies to Goway Travel under a mistake of fact or law, on the principles enunciated by the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353.

11. There were also no causes of action raised that Goway Travel had not provided services with due care and skill (s 60 ACL); or that services provided were not fit for purpose (s 61 of the ACL); or that services had not been provided within a reasonable period of time (s 62 of the ACL).

EVIDENCE OF THE PARTIES

12. Prior to the hearing, each party had filed and served documentary evidence in accordance with Tribunal directions. Such documents were admitted into evidence.

13. The applicant’s documents relevantly included a statement of the applicant (undated) and documents attached to the statement. Such documents involved emails between the applicant and Ms Comito; emails between Ms Comito and Ms Claire Heslop (the daughter in law of the applicant who was a “friend” of Ms Comito, and who was an intermediary between Ms Comito and the applicant); correspondence from the respondent; and bank records of the applicant.

14. The applicant gave evidence at the hearing and was cross examined.

15. The applicant did not provide any statement from Ms Claire Heslop, or call her to give evidence.

16. The respondent’s documentary evidence was a statement of Mr James Forno dated 2 July 2019, and documents attached to the statement. Mr Forno is a consultant with experience in the travel industry who (to use the description given by him in evidence about his role with the respondent) has been engaged by the respondent to “sort out the mess” regarding Ms Comito.

17. Mr Forno’s statement details the investigations he has made from the respondent’s records regarding the travel arranged by the respondent for the applicant and his family, and the monies paid to the respondent. The statement also contained a copy of Ms Comito’s employment contract; her purported duties with the respondent; and the circumstances of her termination (Ms Comito being employed between 2004 and December 2018).

18. Mr Forno gave evidence at the hearing and was cross examined.

APPLICANT’S EVIDENCE

19. The applicant did not give any oral evidence in chief in addition to his written statement.

20. However, the applicant did amend his written statement. In paragraph 15 of his written statement, the applicant stated that he had booked a trip to Italy and Germany in 2015 “through the respondent with Lisa’s assistance at a cost of $20,525.16”. The words “at a cost of $20,525.16” were deleted. In paragraph 16 of the applicant’s written statement, the applicant stated that he; his wife; his son; his daughter in law; and 2 grandchildren had travelled to America between December 2016 and January 2017. The applicant stated: “Again, the booking for the travel party was made through the respondent with Lisa’s assistance at a cost of $71,727.57”. The words “at a cost of $71,727.57” were deleted.

21. The applicant’s evidence can be relevantly summarised as follows:

22. The applicant and his wife are aged in their 70’s and have been travelling together (including overseas travel) for a number of years, and have used various travel agents.

23. The applicant was referred to Goway Travel by his daughter in law, Claire Heslop, who is a friend of Ms Lisa Comito.

24. All of the applicant’s dealings (and his wife’s dealings) with Goway Travel were thorough Ms Comito. Sometimes the applicant would telephone her at the Goway Travel office through the switchboard. Sometimes he would telephone Ms Comito direct. Sometimes correspondence would be by email. Email correspondence was to a “Hotmail” internet account of Ms Comito, rather than through the Goway Travel internet account.

25. The applicant “on most occasions” used Ms Heslop as “an intermediary in the booking process” as travel “on some occasions” involved multiple family members, including Ms Heslop.

26. In December 2014, the applicant and his wife with Ms Heslop’s “assistance” booked a South of France River Cruise. The applicant paid $13,000. The amount of $13,000 was transferred into Goway Travel’s account. The applicant stated in his written statement that “staff” of Goway Travel informed him that the booking could not be finalised, and that the $13,000 would be held as a credit for future travel, which he agreed to.

27. However, in cross examination, the applicant stated that his daughter in law Ms Heslop had informed him that Ms Comito had told her the booking could not be finalised, and that the $13,000 would be held in credit.

28. In 2015, the applicant and his wife travelled to Italy and Germany. The trip was booked through Ms Comito. The applicant’s documents contained no information about what he paid for this trip. In cross examination, the applicant stated he did not know how much had been paid for this trip. He did not accept that the value of this trip was approximately $20,000. He also did not enquire with Ms Comito, or anyone else from Goway Travel, whether the amount of $13,000 was going to be credited towards this trip.

29. In late 2016, the applicant; his wife; his son; Ms Heslop; and his 2 grandchildren travelled on a trip to the USA. The duration of the trip was December 2016 to January 2017. The trip was booked by Ms Heslop, using Ms Comito at Goway Travel.

30. The applicant’s documents contained no information regarding what he paid for this trip. Again, in cross examination, the applicant stated he did not know how much he paid for the trip. He did not accept that the value of this trip was, on the applicant’s own estimate, approximately $71,000 or that was the amount Goway Travel had paid to third party service providers, such as airlines and hotels. He did not enquire whether the amount of $13,000 was going to be credited to this trip (if it had not been credited to the trip to Italy and Germany in 2015).

31. In April 2017, the applicant was offered “Family and Friends Travel Passes” (also known as “Platinum Travel Passes”). The offer was made by email from Ms Comito to Ms Heslop, and Ms Heslop told Ms Comito that her in-laws also wanted to take up the offer.

32. The applicant’s documents contained an email chain between Ms Comito and Ms Heslop. The emails from Ms Comito are from a “Hotmail” address, and contain no specific reference to Goway Travel. The internal Goway travel email that purportedly informed Ms Comito of the “passes” simply contains the footer “Staff Travel”, with no reference to Goway Travel.

33. In any event, the relevant passes which Ms Comito stated had been given to her by her employer and which she could offer to “nominated persons” involved a “Platinum Pass” which was valid for 5 years at a total cost of $9,000 per pass, and allowed the pass holder extremely generous and extensive travel, including 6 international air trips per year; 6 domestic air trips per year; 1 cruise per year; and 1 tour per year.

34. The applicant paid $7,250 on 7 April 2017 for Platinum Passes for himself and his wife. Payment was made to the Goway Travel account, and the applicant provided his bank records in respect of the payment of $7,250.

35. According to the applicant he was told by Ms Comito that $7,250 was the “difference” between what he was owed as a credit for the 2014 cruise that was cancelled, and the cost of $9,000 per pass (i.e. a total cost of $18,000). He stated that he realised later that he had “overpaid” because the difference (if there was a credit of $13,000 for the 2014 trip that had been cancelled) should have been $5,000.

36. In cross examination, the applicant admitted he had made no enquiries about why he was being asked to pay $7,250 if there was a credit of $13,000 owing, or why he had not raised this issue with Goway Travel prior to payment, or soon afterwards. The applicant was extensively questioned on whether he believed the offer was genuine (in circumstances where it was clearly so generous); whether he believed Ms Comito had authority to provide such Platinum Passes on behalf of Goway Travel; and whether he relied on any representations by Ms Comito, in circumstances where Ms Heslop was usually the “intermediary” dealing with Ms Comito.

37. The applicant accepted that the Premium Passes were “outstanding value” but did not accept that they were “too good to be true”. The applicant stated that he believed that Ms Comito had authority to offer the Premium Passes to his daughter in law to be passed on to any “family and friends” because he had telephoned Ms Comito on occasions at the Goway Travel office; and previous travel that had been arranged through Ms Comito had involved payments to the Goway Travel account. The applicant denied that it was “unusual” that Ms Comito was apparently using her private email account to conduct business on behalf of Goway Travel.

38. In June 2017, the applicant booked a trip to Europe comprising of a Holland America “Holy Land Cruise” and a tour of Spain, Portugal and Morocco, which was to be the first travel on the Premium Pass.

39. The applicant was told by Ms Comito that “the total cost of the cruise was not covered” by the Platinum Travel Passes and the applicant needed to pay $2,996.62. The applicant referred to this as a “supplementary payment” and it is unclear whether or not it was a deposit. The applicant paid this amount into the Goway Travel account on 7 June 2017, and provided his bank records in that regard. The “Holy Land Explorer Cruise” was to commence on 19 October 2017.

40. Between 27 September 2017 and 12 October 2017 there was an email exchange between the applicant and Ms Comito. Relevantly, on 27 September 2017 the applicant emailed regarding Ms Comito not having yet arranged and confirmed “long haul flights”; and enquiring whether Ms Comito could also book two internal flights (Rome to Madrid and Madrid to Frankfurt).

41. On 4 October 2017 the applicant emailed Ms Comito regarding being “on edge” that no flights had been booked by Ms Comito as the trip was to commence in “1 weeks’ time”, and that the applicant may have to arrange his own bookings. On 6 October 2017, the applicant emailed Ms Comito as follows:

“Hi Lisa,

Just a short email to check in to make sure that you are ok. You did not sound all that flash on the phone last time I spoke to you. I hope you got the message that we would be looking after our flights. You don’t need have me pestering you all the time. I know you are under the pump.

Having said that, will you or one of your staff be in a position to book some accommodation for us (1 night) in Frankfurt and a hire car in Frankfurt?....If you could assist us on this occasion it would be appreciated. If not, please let us know ASAP so we can make arrangements ourselves”

42. The applicant stated that on 12 October 2017 he was informed by Ms Comito by telephone that the trip to Europe had been cancelled due to “computer problems” at Goway Travel. According to the applicant, he then booked and paid for travel directly. The applicant and his wife then undertook the European trip.

43. The applicant’s documents contained 2 emails he sent to Ms Comito on 12 October 2017. The first email starts as follows:

“I refer to our telephone conversation of today pertaining to our travel arrangements that have been made following the computer problems at Goway Travel that saw our bookings cancelled.”

44. The email then lists a number of costs. The first cost is $7,799.16 per person” for two international business class return flights to Europe; and economy tickets for 2 internal European flights. The second cost is $8,393 for the “Holland America Holy Land Explorer Cruise” commencing 19 October 2017. The third cost is $8,500 “two tickets on Insight Vacations Tour of Spain, Portugal and Morocco” commencing 4 November 2017. The fourth cost is $856 for accommodation in Athens. The fifth cost is $394 for accommodation in Madrid. The sixth cost is $243 for a hire car in Frankfurt. The seventh cost is $347 for accommodation in Frankfurt.

45. Strangely, in circumstances where the applicant had (on his evidence) purchased two “Platinum Travel Passes” that purportedly covered the cost of such travel, the applicant’s email of 12 October 2017 makes no mention of seeking re-imbursement or credit for the cost of him paying directly for the European trip.

46. The applicant’s second email of 12 October 2017 to Ms Comito simply states:

“I neglected to inform you that if and when you require the invoices etc for bookings, please let me know and I will get them to you”.

47. The applicant’s written statement in these proceedings regarding the costs incurred in the European trip is set out at paragraph 28 as follows:

“The costs therein were significantly higher than what they would otherwise have been if our booking had been honoured. However, it would be impossible to quantify the difference. Our claim against the respondent is limited to the supplement of $2,996.62 that we paid and which we never received. These funds have not been returned to us as promised by Lisa”.

48. It appears unusual that the applicant states that “it is impossible to quantify the difference” between the value of the Premium Pass and the amount he paid for the European trip, when he set out the costs in the email of 12 October 2017 to Ms Comito, and also referred to being able to provide invoices to Ms Comito if required.

49. It is also strange that no travel itinerary appears to have been provided by Ms Comito or Goway Travel (for this trip or any of the travel taken by the applicant) and that, despite having purchased the Platinum Travel Passes in June 2017, the applicant would be emailing Ms Comito on 27 September 2017 and 4 October 2017 stating that if Ms Comito couldn’t arrange flights the applicant would book them direct; and further emailing Ms Comito on 6 October 2017 to state that he had personally booked flights and would be booking accommodation; prior to being informed by Ms Comito on 12 October 2017 that “bookings” had been cancelled.

50. It is unclear on the applicant’s evidence as to what bookings, if any, had been made by Ms Comito or Goway Travel in respect of the European trip prior to 12 October 2017.

51. However, the applicant asserted that he was not claiming the cost of the European trip other than reimbursement of the amount of $2,996.62 paid on 7 June 2017, which the applicant stated was payment for the “Holland America Holy Land Cruise”. Further, the applicant was not cross examined in any detail about the circumstances regarding the purported booking of the European trip by Ms Comito, or the monies that had been paid by the applicant, including whether or not the $2,996.62 amount was a deposit for the cruise, and whether or not it had been credited by the cruise provider when the applicant had ultimately booked the cruise direct.

52. The applicant provided no corroborative documentary evidence to verify how much he paid for the Holland America Holy Land Cruise, or any other travel in respect of the 2017 European trip.

53. The applicant stated that in July 2018 he received correspondence from Goway Travel and a Solicitor for Goway Travel that the “Family and Friends Travel Pass Scheme” was under investigation and that future travel in respect of such passes would not be honoured. There was further correspondence from Goway Travel asking persons affected by Ms Comito’s conduct to provide details of monies they had paid Goway Travel and what travel had been provided.

54. The applicant sent an email to Goway Travel on 21 March 2019 seeking reimbursement for “$18,999 for the two “unused” 5 year travel platinum passes and the $2,996.62 for the deposit for the Holland America Holy Land Cruise (which was cancelled by Goway) be refunded to us immediately”.

55. The applicant then commenced proceedings in the Tribunal.

56. In cross examination, the applicant agreed that he and his wife had travelled to Adelaide in April 2017 and that Goway Travel had paid for accommodation booked in respect of that trip.

RESPONDENT’S EVIDENCE

57. The evidence of Mr Forno is relevantly summarised as follows:

58. Mr Forno has experience in the travel industry and has been engaged as a consultant by Goway Travel to review its records and speak to staff regarding the conduct of Ms Comito.

59. Most of Goway Travel’s operations involved arranging travel within Australia and New Zealand for overseas clients, particularly its Canadian parent company. However, Goway Travel did arrange overseas and domestic travel for Australian clients as a “small part of its operations”.

60. Ms Comito was employed by Goway Travel between 2004 and December 2018. Ms Comito was employed as a “Fully Independent Tours Consultant” (‘FIT Consultant’) and her duties involved arranging travel bookings in Australia and New Zealand for overseas clients that had been referred from overseas travel agents, including Goway’s parent company in Canada.

61. At some point in time (Mr Forno’s evidence did not disclose the date), Ms Comito was promoted to the position of “Operations Manager” of the “in bound travel division” supervising other “Fully Independent Tour” consultants and reporting to Mr Atkins, the General Manager of Goway. Travel. In regards to Ms Comito’s duties, Mr Forno stated:

“From time to time, Ms Comito also provided outbound/retail travel services to customers of Goway including taking bookings and arranging for Goway’s retail travel consultants to arrange flights and accommodation”.

62. Goway Travel had not provided “Travel Passes” including “Platinum Travel Passes” as a product for sale. The purported Travel Passes offered extensive international and domestic travel over a 5 year period for payment of a modest amount of money, and Mr Forno was not aware of any such products being offered by any operators within the travel industry. The value of services purportedly promised under the “Travel Passes” was far in excess of the amount charged for the passes, and was uneconomic.

63. Mr Forno had reviewed Goway Travel’s accounts, and the following amounts had been paid by the applicant into the bank account of Goway Travel:

1. $13,000 on about 8 December 2014;

2. $28,000 on about 14 August 2014;

3. $6,000 on 12 May 2015;

4. $3,200 on 27 January 2015;

5. $7,250 on 7 April 2017;

6. $2,996.62 on 7 June 2017.

64. The total amount of the above amounts is $60,446.62. According to Mr Forno, he could find no record of any other family member of the applicant paying any monies to Goway Travel.

65. Mr Forno was not able to locate a tax invoice in the applicant’s documents dated 10 December 2014 on the letterhead of Goway Travel in the business records of Goway Travel.

66. Ms Heslop was not an employee or consultant with Goway Travel, and the email address used by Ms Comito in correspondence with the applicant was not a business email address of Goway Travel, or an email address to which Goway Travel had access.

67. Mr Forno stated that, upon his review of the records of Goway Travel, the applicant and his family had undertaken travel that Goway Travel had paid for at a cost to Goway Travel of $137,792.12.

68. The amount of $137,792.12 paid by Goway Travel in respect of travel undertaken by the applicant and his family members was comprised as follows:

A trip to Europe in August 2015 undertaken by the applicant and his wife.

69. In respect of this trip, Goway Travel had paid for 2 return flights from Sydney to Rome; and 2 internal flights from Palermo to Amsterdam. The total cost of such flights was $20,525.16.

A trip to the USA in December 2016 undertaken by the applicant, his wife, and family members.

70. Mr Forno’s evidence lists in detail each of the payments for flights, accommodation, and car hire paid by Goway Travel.

71. Merely in respect of the applicant and his wife (without taking into account other family members) Goway Travel paid for return flights from Sydney to San Francisco (at a cost of $17,115.66); accommodation in San Francisco (at a cost of $1,712.65); car hire in Las Vegas (at a cost of $626.38); one way airfares from San Francisco to San Diego (each costing $370.40); accommodation in San Diego (at a cost of $1,098.20); car hire in San Diego (at a cost of $1,216.78); accommodation in Anaheim (at a cost of $1.280.51); accommodation at Disneyland (at a cost of $2.427.47); air travel from Seattle to Indianapolis, Indianapolis to Los Angeles, and Los Angeles to Seattle (at a cost of $754.80); car hire in Seattle (at a cost of $354.75); car hire in Indianapolis (at a cost of $353.36); accommodation in Seattle (at a cost of $155.15); and accommodation in Singapore (at a cost of $1,042.96).

72. The above amounts total $27,443.75. According to the evidence of Mr Forno, when the cost of flights; accommodation and car hire for the applicant’s other family members are taken into account, Goway Travel paid over $115,000 for the travel of the applicant and his family members on the trip to the USA in December 2016.

A Trip to Tasmania taken by the Applicant and his wife in March 2017

73. In respect of this trip, Goway Travel had booked return flights between Sydney and Launceston at a total cost of $663.82.

A Trip to Adelaide taken by the Applicant and his wife in April 2017

74. In respect of this trip, Goway Travel had paid for 2 return flights from Sydney to Adelaide (at a total cost of $585.92); and accommodation at Mantra Group (at a cost of $267.30).

75. Mr Forno was cross examined about the issue of ‘Travel Passes’ in the travel industry. Mr Forno stated that although some travel agents and tour providers issue such passes, they are limited in scope and duration (such as being valid for 30 days), and the passes purportedly offered by Ms Comito were grossly extravagant and well beyond normal business practice in the travel industry.

JURISDICTION

76. The jurisdiction of the Tribunal in consumer claims derives from Part 6A of the Fair Trading Act 1987 (NSW) (‘the FT Act’).

77. The applicant is a “consumer” within the meaning of s 79D of the FT Act. The claim is a “consumer claim” within the meaning of s 79E of the FT Act, as it arises from the supply of services to the applicant by a supplier of services in trade or commerce (see the further definition of “services” and “supply” in ss 79F and 79G of the FT Act).

78. The claim is also within the jurisdictional limit of the Tribunal under s 79S of the FT Act.

79. However, the jurisdiction of the Tribunal is subject to the limitation period in s 79L of the FT Act. Relevant to this application, under s 79S (1)(a) of the FT Act, the Tribunal only has jurisdiction if the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged.

80. Accordingly, if the applicant’s cause of action giving rise to the claim first accrued prior to 27 March 2016, the Tribunal does not have jurisdiction.

81. As discussed previously, the applicant’s causes of action were identified as being: (i) breach of contract; and (ii) breach of provisions of the ACL.

82. The cause of action for breach of contract first accrues at the date of breach (Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 (‘Stein’) at [41]. Causes of action based on breach of provisions of the ACL relied upon in this application first accrue when the alleged damage became known or could have become known with reasonable diligence: Sacks v Hammoud [2016] NSWCATAP 225 at [59]; Tang t/as Better Aquariums v Karatasoulis [2018] NSWCATAP 140 at [31-[32]; Stein at [54].

CONSIDERATION

83. Even before the Tribunal considers the issues of: (i) whether the causes of action are within the limitation period under s 79L of the FT Act; (ii) whether Goway Travel is bound by the conduct of Ms Comito under principles of actual or ostensible authority; and (iii) if so whether there has been any breach of contract or breach of the identified provisions of the ACL, it is appropriate to consider whether or not the applicant has proved any loss, because he is seeking a money order in the proceedings.

84. If the applicant has failed to establish any loss, then it is unnecessary to consider the whether breach has been established (either in contract or under the identified provisions of the ACL), or the associated issues of causation; remoteness of damage; and mitigation of loss.

85. In respect of breach of contract, damages are assessed at the date of the breach and are assessed on the basis of an amount of money that would put the innocent party in the position they would have been had the contract been performed (Robinson v Harman (1848) 154 ER 363; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 (2009) 236 CLR 272; Clark v Macourt [2013] HCA 56 (2013) 253 CLR 1 (‘Clark v Macourt’)).

86. The corollary of the principle that damages for breach of contract are assessed to put the innocent party in the position they should have been had the contract (i.e. the bargain) been performed is that damages are not to be assessed in a manner that would put the innocent party in a superior position to that which he or she would have been in had the contract been performed: Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54 (1991) 174 CLR 64 (‘Amann Aviation’) per Mason CJ and Dawson J at [28].

87. Loss can be measured in different ways, including expectation loss (e.g. the increased cost of acquiring services that were not provided, or only partially provide, under the contract); reliance loss (e.g. money spent in reliance on the contract which was wasted); and restitution loss (e.g. where there has been partial performance of a contract, and the defaulting party has obtained a benefit, damages may be assessed in rare circumstances on the basis of the value of the benefit): Carter on Contract (looseleaf); Lexis Advance; [41-100]-[41-130]. However, it is a matter for the court (or Tribunal) to determine the appropriate basis of assessing damages: Amann Aviation at [35]

88. The applicant asserts that his dealings with Goway Travel should be considered as separate contracts, and the Tribunal should simply disregard the contracts that the applicant regarded as satisfactory, such as his and his wife’s travel to Europe in 2015; his and his family’s travel to the USA in December 2016-January 2017; and his and his wife’s travel to Adelaide and Tasmania in 2017.

89. However, the facts of this matter involve a course of dealings between the applicant and Goway Travel (on the assumption, for the purpose of considering the issue of loss, that Ms Comito had actual or ostensible authority to bind Goway Travel). This dispute does not involve a single contract, such as Clark v Macourt, where the High Court discussed in detail the principles applicable for the measure of damages arising from sale of a business. In this matter (leaving to one side the issue of whether or not Ms Comito had actual or ostensible authority to bind Goway Travel in respect of the issue of Platinum Travel Passes) the applicant organised travel through Goway Travel on a number of occasions for himself and family members; he paid monies to Goway Travel on a number of occasions in respect of travel for himself and family members; and he was provided services by Goway Travel on a number of occasions (in respect of Goway Travel paying third party providers in respect of the travel by the applicant and members of his family). The salient issue is what, if any, loss has been established.

90. Even if such a course of dealings is considered to be the entry into a number of separate contracts involving separate breaches (and there are significant conceptual difficulties with this approach, in circumstances where there is no evidence from the applicant that he paid any monies to Goway Travel other than in respect of the amounts he is claiming, despite having travelled with his wife to Europe in 2015; with his family to the USA in December 2016 to January 2017; and with his wife to Tasmania and Adelaide in March-April 2017; and in circumstances where he used his daughter in law Ms Heslop to facilitate travel on a number of occasions), the Tribunal can consider the benefits obtained (if any) in respect of the course of dealings, including dealings arising after the breach to determine whether loss has been established.

91. When assessing damages for breach of contract, the rule that assessment occurs at the date of breach is flexible, and must take into account what is the fair measurement of loss (if any): McCrohon v Harith [2010] NSWCA 67 at [54]-[55]. Although the “ruling principle” is that loss is assessed at the date of breach (Clark v Macourt at [108]), that principle is “not inflexible” and the issue of assessment of damages for breach of contract may be assessed in respect of a later date if it is in the interests of justice to do so: Ng v Filmlock Pty Ltd [2014] NSWCA 389; (2014) 88 NSWLR 389 at [51]-[56].

92. The Tribunal is satisfied that it is appropriate to consider the course of the dealings between the applicant and Goway Travel in totality, rather than as separate and discrete individual contracts. Even if the course of dealings is analysed as separate and discrete contracts, the Tribunal is satisfied that it is in the interests of justice to consider the value of services provided in total to the applicant and his family by Goway Travel, to fairly assess whether or not any loss has been established.

93. In respect of loss, the applicant has an evidentiary onus to establish loss. Although a court may award damages for breach of contract (or tort) despite there being limited evidence regarding loss and the task of assessment being a difficult one, the failure of a party to provide any evidence to establish on a rational basis that there has been loss will result in there being either no award of damages, or an award of nominal damages: McCrohon v Harith [2010] NSWCA 67 at [118]-[125].

94. In this matter, the applicant has not provided any evidence of monies paid by him in respect of his travel that was purportedly arranged through Goway Travel other than 3 payments made to Goway Travel in the period from December 2014 to June 2017. There is no evidence from the applicant to verify how much the applicant paid for travel to Europe in 2015; or his family trip to the USA in December 2017-January 2017, or travel to Tasmania and Adelaide in March-June 2017. There is also no evidence that any other person, such as Ms Heslop or the applicant’s wife, paid for any travel taken by the applicant and family members arranged through Ms Comito or Goway Travel.

95. However, the evidence of Goway Travel (from its business records) is that the applicant paid a total of $60,446.62 to the respondent in the period from 14 August 2014 to 7 June 2017 and that in the same period Goway Travel paid to third parties $137,461.82 in respect of travel by the applicant and his family members in respect of trips to Europe; the USA; Tasmania; and Adelaide in the period from August 2015 to April 2017 (annexure ‘B’ and annexure ‘C’ to the statement of Mr Forno and the attached business documents).

96. The Tribunal accepts the evidence of Goway Travel that the applicant paid $60,446.62 to it for travel for the applicant; his wife; and his family; and that Goway Travel expended $137,461.82 paying third parties (including air tickets, accommodation and car hire) in respect of travel for the applicant; his wife; and his family members.

97. Accordingly, irrespective of whether or not multiple contracts between the applicant and Goway Travel have been established; whether breach of contract has been established; and whether breaches of the provisions of the ACL relied upon have been established (including misleading and deceptive conduct) the applicant has failed to establish any loss, in circumstances where the value of the travel paid for by Goway Travel for the applicant and his family substantially exceeds the amount paid by the applicant to Goway Travel, and there is no evidence of any payments by the applicant to any other travel providers.

98. Although the Tribunal has referred in detail to the principles applicable for measurement of damages for breach of contract, the same principles discussed regarding evidence of loss are applicable in respect of the claims of the applicant under the ACL, although the measure of damages in respect of breach of s 18 of the ACL (misleading and deceptive conduct) is the loss that was caused by the breach: see the discussion of the relevant authorities in Curtis v Potter & Co Pty Ltd t/as The African Safari Co [2016] NSWCATAP 196 at [63]-[66]. The onus remains on the applicant to establish loss caused by the alleged breaches of the ACL.

99. Even if the applicant had proved breach of contract; or breach of the identified provisions of the ACL; no evidence of loss caused by the breach has been established in circumstances where the value of the services provided by Goway Travel regarding travel significantly exceeded the amount paid by the applicant to Goway Travel. Accordingly, the claim is dismissed.

100. Further, in respect of the component of the claim regarding the payment of $13,000 on or about 10 December 2014, by reason of s 79L of the FTA, the Tribunal has no jurisdiction to consider this claim in any event, as any alleged breach occurred prior to 27 March 2016 (in respect of any contractual claim) and the applicant was aware, or should reasonably have been aware of the loss arising from the alleged breach (in respect of an ACL claim) prior to 27 March 2016.

THE ISSUE OF COSTS

101. As both parties are legally represented, the possibility exists that there will be a costs application. As the amount claimed by applicant or in dispute in the proceedings did not exceed $30,000 (Reg 38 Civil and Administrative Rules 2014 (NSW)), the provisions of s 60 of the NCAT Act are applicable to any costs application, and no order for costs can be made without “special circumstances” being established. In the absence of a successful costs application, each party is to bear its own costs. If there is a costs application the issue of costs will be separately considered and the Tribunal has made directions in regard to that issue.

ORDERS

1. The application is dismissed.

2. If there is an application for costs, the respondent is notify the Tribunal and the applicant in writing by 14 days from the date of this decision that the respondent is making a costs application and include a proposed timetable for written submissions. If a costs application is made, the Tribunal will issue further directions to the parties regarding each party filing and serving written submissions on the issue of costs.

3. Any submissions on the issue of costs are to include whether or not the respective parties consent to the issue of costs being determined on the papers. In accordance with s 50 (2) of the NCAT Act, the Tribunal may determine the issue of costs on the papers and without further oral hearing.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 July 2021