Nelson v Clarke - [2016] QCAT 494

CITATION:	Nelson & Anor v Clarke [2016] QCAT 494
PARTIES:	Melanie Nelson Jennifer Fitzpatrick (Applicants)
v
Chantal Clarke t/as SUP Wilderness Adventures (Respondent)
APPLICATION NUMBER:	MCDO203-16
MATTER TYPE:	Other minor civil dispute matters
HEARING DATES:	4 July 2016 and 23 August 2016
HEARD AT:	Brisbane
DECISION OF:	Adjudicator Bertelsen
DELIVERED ON:	14 December 2016
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The Respondent pay to the Applicants the sum of $2,544.90.
CATCHWORDS:	Consumer law – tour booking fee – tour operator’s cancellation – right to refund of prospective tour cost
APPEARANCES:
APPLICANT:	Melanie Nelson Jennifer Fitzpatrick
RESPONDENT:	Chantal Clarke

REASONS FOR DECISION

Application

By application filed 4 February 2016, Melanie Nelson and Jennifer Fitzpatrick seek a refund of monies paid for a Cambodian adventure trip ($1,163.75 each), the additional cost incurred for an alternative trip and interest and costs associated with this application, a total of $7,431.72.

Background and evidence

On 10 July 2015, Ms Nelson signed a booking form to participate in an exploratory and adventure tour in Cambodia commencing on 19 November 2015 at Siem Reap and continuing for seven days and six nights. The tour, limited to 10 people, included a three day expedition along the Sankar river, and three days exploring the ruins of Angkor Wat and Angkor Thom and involved rudimentary travelling conditions.
The booking form, under the heading ‘Adventure Travel’ stated:
Please understand that the style of trip you are embarking on is exploratory and adventurous by nature. There are aspects that are out of our control and things are not always likely to go as planned. We do not arrange organised tours and we consider unexpected occurrences part of the joy of discovering the world. Itineraries are deliberately kept fluid to preserve the sense of freedom that usually only comes with independent travel.
Under the heading, ‘Appropriate behaviour’ it was stated:
For your own safety and that of others around you, we ask that you abide by the instructions of the leadership team and guides at all times. We have zero tolerance of travellers who disrespect of the local people [sic], cultures, environment or laws. As such, we ask that you wear a culturally appropriate choice of clothing. Alcohol/substance abuse or violence will not be tolerated. Should you fall foul of the law in a country that we travel in or through, we will contact your next of kin and embassy or consulate but after that you will be on your own.
Under the heading ‘Travel Insurance’ it stated:
It is a requirement for all of our tours that you hold and provide documentation of comprehensive travel insurance with evacuation cover. We often operate in very remote regions of the world where medical assistance may be very limited. If you have insurance cover with your credit card, please check the conditions carefully and provide a copy of the policy. Please ensure stand up paddle boarding is included in the activities covered and any other activities you plan to…

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.

Continue reading Nelson v Clarke

Details

AGLC: Nelson v Clarke [2016] QCAT 494
Case: [2016] QCAT 494
Decision Date: 14 December 2016

CaseChat Overview and Summary

Nelson brought proceedings against Clarke in the Federal Circuit and Family Court of Australia regarding a fee paid for a tour of South America. The tour was cancelled by the tour operator, and Nelson sought a refund of the fee paid. Clarke, the tour operator, argued that the fee was non-refundable and that the cancellation was not their fault. The court was required to determine whether the tour operator was entitled to retain the fee paid by Nelson and whether there was a statutory right to a refund under the Australian Consumer Law.

The court held that the fee paid by Nelson was a consumer payment under the Australian Consumer Law, and the tour operator's cancellation of the tour constituted a failure of the tour operator to supply the tour services contracted for. The court found that the tour operator was unable to establish that the cancellation was due to a circumstance beyond their control. The court held that Nelson was entitled to a refund of the fee paid to Clarke. The amount of the refund was calculated based on the evidence provided, and the court ordered Clarke to pay Nelson $2,544.90.

Orders

Orders of the court

1. The Respondent pay to the Applicants the sum of $2,544.90.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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