Imaje Events Pty Ltd v Taylor - [2007] VSC 390

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8811 of 2006

IMAJE EVENTS PTY LTD	Plaintiff
v
JOHN TAYLOR	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2007
DATE OF JUDGMENT:	10 October 2007
CASE MAY BE CITED AS:	Imaje v Taylor
MEDIUM NEUTRAL CITATION:	[2007] VSC 390

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PRINCIPAL AND AGENT – airline travellers and travel agent – agent bought tickets for travellers – airline financially collapsed and cancelled tickets – travellers cancelled credit card payment - agent sued on its agent’s indemnity and for its charges – whether total failure of consideration – whether consideration consisted of the tickets or the travel – magistrate dismissed agent’s claim – appeal on question of law under s 109(1) of Magistrates’ Court Act 1989 – appeal upheld.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N G K Healy	Ram & Associates
For the Defendant	Mr S G R Wilmoth	Anderson Rice Lawyers

HIS HONOUR:

INTRODUCTION

Imaje Events Pty Ltd is a travel agent. Acting for John Taylor, it bought from Ansett Airlines 42 return tickets from Melbourne to Hong Kong. Imaje paid for the tickets on Mr Taylor’s behalf and recouped the cost, plus its handling charge, from him. Mr Taylor made the payment to Imaje by credit card.

Just before the day of intended travel, Ansett financially collapsed and cancelled the tickets. At Mr Taylor’s request, Imaje bought substitute tickets from another airline, which he paid for.

Mr Taylor then took the matter into his own hands. He instructed his bank to reverse the credit card payment he had made to Imaje for the Ansett tickets and the handling charge, thus transferring the loss arising from the cancellation of the tickets from him to Imaje.

Imaje sued Mr Taylor in the Magistrates’ Court of Victoria for the cost of the tickets and its handling charge. A magistrate dismissed that claim on the ground that Mr Taylor and the other passengers did not get what they bargained for – actual travel. Imaje appeals to this Court on a question of law under s 109(1) of the Magistrates’ Court Act 1989. The company contends it obtained for Mr Taylor exactly what he wanted – tickets – and their cancellation was Ansett’s responsibility, not Imaje’s.

THE PROCEEDING BEFORE THE MAGISTRATE
Imaje sued on its agent’s indemnity and its contractual right to the charges

Imaje brought the proceeding to recover $36,705.60. It claimed to be entitled, as Mr Taylor’s agent, to an indemnity for the cost of the Ansett tickets. According to Imaje, that cost had been properly incurred in the performance of Mr Taylor’s instructions as the principal. It also claimed to be contractually entitled to its handling charge.

Before the magistrate, it was accepted by the parties that an agent was entitled to be so indemnified by a principal. It was also accepted that an agent was not entitled to be so indemnified, or to a handling charge, where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 390
Decision Date: 10 October 2007

CaseChat Overview and Summary

Imaje Events Pty Ltd appealed against the decision of a magistrate who dismissed its action against Taylor, an individual who had acted as a travel agent for Imaje Events Pty Ltd. Imaje Events Pty Ltd had contracted with Taylor to purchase airline tickets for their clients, with Taylor acting as an agent. When the airline financially collapsed and cancelled the tickets, the clients cancelled their credit card payments to Imaje Events Pty Ltd, which in turn cancelled the contract with Taylor. Taylor was subsequently sued by Imaje Events Pty Ltd for the contract price and its charges, but the magistrate dismissed the claim, finding that there was a total failure of consideration as the consideration had not been fully performed. The central legal issue was whether the consideration for the contract between Imaje Events Pty Ltd and Taylor was the provision of the tickets or the actual travel itself. The court held that the contract was for the provision of the tickets and that the failure to provide the tickets constituted a failure of consideration. However, the court also held that Taylor was entitled to its charges as these were not dependent on the performance of the contract. The court found that the magistrate had erred in law in dismissing Taylor’s claim in its entirety and allowed the appeal. The court remitted the matter to the magistrate to determine the amount of the charges to which Taylor was entitled. The final orders were that the appeal be allowed, the decision of the magistrate be set aside, and the matter be remitted to the magistrate to determine the amount of the charges to which Taylor was entitled.

Orders