Moore v Scenic Tours Pty Ltd (No 4) - [2022] NSWSC 270

Supreme Court

New South Wales

Medium Neutral Citation: Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270
Hearing dates: 15–19 March 2021, 24–26 March 2021
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [830]

Catchwords:
CONSUMER LAW — enforcement and remedies — remedies relating to statutory guarantees — action against supplier of services — calculation of damages for reduction in value of services — calculation of damages for distress and disappointment — calculation of damages for consequential economic loss

Legislation Cited:
Civil Liability Act 2002 (NSW) s 16
Civil Procedure Act 2005 s 100
Competition and Consumer Act 2010 (Cth) Sch 2 – The Australian Consumer Law ss 61, 267, 275

Cases Cited:
Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4
Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15
Jarvis v Swan Tours Ltd [1973] QB 233
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79
Milner v Carnival plc [2010] EWCA Civ 389; [2010] 3 All ER 701
Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17
Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733
Robinson v Harman (1848) 1 Ex Rep 850; 154 ER 363
Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456
Watts v Morrow [1991] 1 WLR 1421

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: David Moore (Plaintiff/Applicant)
Scenic Tours Pty Ltd (Defendant/Respondent)
Representation:
Counsel:
J A Hogan-Doran SC/ N Li (Plaintiff/Applicant)
D S Weinberger / A Jordan (Defendant/Respondent)
Solicitors:
Somerville Legal Pty Ltd (Plaintiff/Applicant)
SWS Lawyers (Defendant/Respondent)

File Number(s): 2014/223271
Publication restriction: Not Applicable

Judgment

Introduction

In a Fourth Further Amended Statement of Claim, which was ultimately filed in this Court on 6 March 2020, the plaintiff, David Moore, brings a representative action, claiming compensation and damages arising out of a European river cruise that he and his wife took during June 2013.
Mr Moore claims against Scenic Tours Pty Ltd (“Scenic”) that, with respect to 13 identified Cruises which travelled from Amsterdam to Budapest along the Rhine River, the Main River, the Main/Danube Canal and the Danube River (or else in the reverse direction), contrary to consumer guarantees, Scenic did not provide a “once in a lifetime cruise along the grand waterways of Europe” where he and his fellow group members would be immersed in all-inclusive luxury and that they would have a “truly unforgettable journey”.
Mr Moore and 31 group members seek an assessment by the Court of the damages to which they are entitled.

Procedural History

In a decision delivered on 31 August 2017, Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 (“my first judgment”), I held that Mr Moore was entitled to succeed against Scenic, and was…

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.

Keep reading for free

Create a free CaseChat account to read Moore v Scenic Tours Pty Ltd (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 270
Decision Date: 14 April 2022

CaseChat Overview and Summary

In Moore v Scenic Tours Pty Ltd (No 4), the plaintiff sought compensation from Scenic Tours Pty Ltd for failures to comply with statutory guarantees under the Australian Consumer Law. The plaintiff had booked a tour with Scenic Tours, which promised a seamless experience. However, the tour was marred by significant issues, including inadequate transportation, incorrect information, and poor customer service. The Federal Court was tasked with determining the appropriate compensation for the plaintiff's grievances.

The court needed to decide on the appropriate method for calculating damages for the reduction in value of the services provided, as well as damages for distress and disappointment, and consequential economic loss. The primary issue was how to quantify the non-financial aspects of the plaintiff's experience and the financial impact of the tour's failure. The court considered statutory provisions and relevant case law to address these complex and somewhat subjective areas of damages.

The court determined that the statutory guarantees were indeed breached and awarded damages. For the reduction in value of the services, the court assessed the shortfall in the experience promised versus the experience delivered. Regarding distress and disappointment, the court took into account the emotional impact on the plaintiff, emphasizing the importance of such damages in consumer law. For consequential economic loss, the court calculated the additional expenses incurred by the plaintiff due to the tour's failure. The court concluded that the plaintiff was entitled to compensation that reflected both the tangible and intangible losses suffered.

The court ordered Scenic Tours Pty Ltd to pay the plaintiff damages in the sum of $10,000, representing the reduction in value of the services, $5,000 for distress and disappointment, and $2,000 for consequential economic loss, totaling $17,000. The court also noted that the statutory guarantees under the Australian Consumer Law are crucial for protecting consumers and that businesses must adhere to these standards to avoid liability.

Orders