Satyaprem Moira Gibson v Blue Bella Pty Ltd t/as Quantum Change Seminars
[2015] NSWCATCD 72
•03 July 2015
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Satyaprem Moira Gibson v Blue Bella Pty Ltd t/as Quantum Change Seminars [2015] NSWCATCD 72 Hearing dates: 18 June 2015 Decision date: 03 July 2015 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: The respondent is to refund to the applicant the sum of $5,800.00 immediately.
Catchwords: Section 62 ACL: Services provided within a reasonable time. Legislation Cited: Consumer Claims Act 1998; Fair Trading Act 1987;
Competition and Consumer Act 2010-Schedule 2
Australian Consumer LawCategory: Principal judgment Parties: Satyaprem Moira Gibson (applicant)
Blue Bella Pty Ltd (respondent)File Number(s): GEN 15/29086 Publication restriction: Nil
reasons for decision
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The applicant claims a full refund for a travel tour to Egypt on the grounds that the respondent was not able to provide the tour on the scheduled dates in 2014.
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Both parties appeared at the hearing and advised the Tribunal that they were ready to proceed to hearing.
APPLICANTS’ EVIDENCE
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On the 15 October 2014, the applicant paid to the respondent the sum of $5,800.00 for an escorted tour to Egypt with itinerary dates being advertised as December 3-17 2014.
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On 13 November 2014 the applicant was advised verbally by the respondent that the tour that was scheduled for 2014 was postponed until December 2015, due to two families not being able to travel in 2014.
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Various discussions were held between the parties regarding whether the applicant would postpone her trip and travel in 2015. Discussions were also held regarding the applicant travelling in December 2014 but not on the same tour that had been advertised by the respondent.
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The applicant now seeks a refund of money paid as she does not wish to travel with the respondent in December 2015. The respondent was not able to offer the service as promised and she should be entitled a refund of money paid.
RESPONDENT’S EVIDENCE
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The respondent submitted amongst other things that the applicant should not be entitled to a refund because:
The tour was not cancelled but postponed.
The terms and conditions of the Contract allow the respondent to vary the date of the tour without any penalty to the responnde.t
The applicant agreed to travel in 2015.
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Clause 2 of the respondent’s Terms and Conditions states as follows:
“QC Seminars reserve the right to change the speakers, event hours, dates and /or the Venue for any reason by notifying you in writing of the change and detailing substitute speakers, event hours, dates and or venue and:
We shall have no liability to you and
You shall make no claim against us (including a refund) in respect of the same.”
DECISION
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The Tribunal has jurisdiction to determine claims arising under Australian Consumer Law (“ACL”) see: s 28 Fair Trading Act 1987 (NSW) ("FTA"); where the applicant is a “consumer” in accordance with ss3, 3A and 4 of the Consumer Claims Act 1998 (NSW) ("CCA"); and the claim is filed before the expiration of three years after the cause of action arose, s 7(4) CCA.
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I am satisfied that the applicant is a consumer and the supply of the respondent's services involved a consumer contract with the applicant, whose interest was wholly or predominantly for personal use within the monetary limit fixed under s 14 CCA , and that the claim was brought in time, s 7(4) CCA.
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The Australian Consumer Law (ACL) provides a number of guarantees that apply to the supply of goods or services in Australia.
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Section 64 of the ACL provides that Guarantees cannot be excluded by contract. Section 64 states as follows:
64 Guarantees not be excluded etc. by contract
(1) A term of a contract ( including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify or has the effect of excluding, restrict or modifying:
(a) the application of all or any of the provisions of this Division; or
(b) the exercise of a right conferred by such a provision or
(c) any liability of a person for a failure to comply with a guarantee that applies under this decision to a supply of goods or services.
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One of the guarantees provided by the ACL is that services are to be provided within a reasonable period of time. Section 62 of the ACL provides as follows:
62 Guarantee as to reasonable time for supply
If:
(a) A person (the supplier) supplies, in trade or commerce services to a consumer; and
(b) The time within which the services are to be supplied:
(i) Is not fixed by the contract for the supply of the services; or
(ii) Is not to be determined in a manner agreed to by the consumer and (ii) supplier;
There is a guarantee that the services will be supplied within a reasonable time.
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The applicant provided evidence that she attended a seminar where she was given written information that the Egypt Tour Itinerary was 4-17 December 2014. The respondent has given evidence that he applicant was advised not to book her airline tickets until the dates were confirmed. The respondent stated that it was always its intention for the tour to depart in December 2014 however due to two families not being able to travel at that time a commercial decision was made to postpone the tour until December 2015.
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The Tribunal finds that a delay of 12 months to provide a service is unreasonable. The Tribunal put to the respondent during the hearing what would have occurred if the applicant had other commitments in December 2015 and was not able to travel at that time. The respondent stated that the applicant had the ability to transfer her contract to another person. The Tribunal finds that this is unreasonable. The term reasonable is defined in the Oxford Dictionary as meaning:
“having sound judgment, fair and sensible; no reasonable person could have objected”.
The Tribunal finds that it was reasonable for the applicant to object to having to travel 12 months after the proposed date of travel that was indicated to her in the itinerary that was given to her prior to entering the contract.
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The Tribunal places little weight on the respondent’s evidence that the applicant verbally agreed to travel in 2015. The applicant denies having agreed to travel in 2015. Even if she had agreed verbally to travel in 2015, the Tribunal finds that she was not bound by that verbal agreement and her contact with the respondent soon after being advised of the postponed date and requesting a refund was reasonable.
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The Tribunal also places little weight on the respondent’s evidence that the applicant was offered a tour to travel in 2014. In the respondent’s own evidence the tour was not of the same standard and quality of the tour that the applicant had paid for.
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The Tribunal finds that the respondent has breached a Consumer Guarantee by failing to provide the service within a reasonable period of time. Consumer Guarantees cannot be excluded, restricted or modified by a term of the contract.
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In making this decision the Tribunal has had regard to section 13 of the Consumer Claims Act 1998. The Tribunal when making an order must make such orders as, in its opinion will be fair and equitable to all parties of the claim. The respondent gave evidence that the funds for the 2015 tour were forwarded to the tour operators in Egypt and were not able to be refunded. No evidence was provided by the respondent to support this claim. The Tribunal determines that the applicant is entitled to a refund of money paid.
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The applicant is entitled to a refund of money paid.
M Eftimiou
General Member
Civil and Administrative Tribunal of New South Wales
3 July 2015
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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: 28 August 2015
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