Scenic Tours Pty Ltd v Moore (No 2) - [2018] NSWCA 300

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Scenic Tours Pty Ltd v Moore (No 2) [2018] NSWCA 300
Hearing dates: On the papers
Decision date: 07 December 2018
Before: Payne JA, Sackville AJA, Barrett AJA
Decision:
The following additional order is made:
14. The Court answers the Agreed Common Questions in the manner set out in the document entitled “Agreed Common Questions and Answers”, being Annexure A to the Court’s reasons for judgment in Scenic Tours Pty Ltd v Moore (No 2)
Catchwords: Representative proceedings – answers to common questions – costs orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Scenic Tours Pty Ltd v Moore [2018] NSWCA 238
Category: Procedural and other rulings
Parties: Scenic Tours Pty Ltd (Appellant)
David Moore (Respondent)
Representation: Solicitors:
SWS Lawyers (Appellant)
Somerville Legal (Respondent)

File Number(s): 2017/282822
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 733

Date of Decision:

31 August 2017

Before:

Garling J

File Number(s):

2014/223271

Judgment

THE COURT: The Court delivered judgment in this matter on 24 October 2018. [1] This judgment deals with outstanding matters. It assumes familiarity with the Principal Judgment, including abbreviations.
1. Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 (Principal Judgment).
The Court made orders in the Principal Judgment dismissing Mr Moore’s claim for damages pursuant to s 267(4) of the ACL for disappointment and distress. Mr Moore’s claim pursuant to s 267(3)(b) of the ACL for reduction in the value of the services remains to be determined by the primary Judge. [2]
2. Principal Judgment at [396], [399].
The Court reached the following conclusions in the representation proceeding brought on behalf of Group Members:[3]
3. Principal Judgment at [397].

“(i)   the primary Judge’s findings that Scenic breached the Care Guarantee by reason of its pre-embarkation conduct in relation to Cruises 1, 4, 5, 6, 7, 8, 9 and 11 cannot stand;
(ii)   the primary Judge’s findings that Scenic breached the Care Guarantee by reason of its post-embarkation conduct in relation to Cruises 4, 5, 6 and 7 should not be disturbed;
(iii)   the findings that Scenic breached the Purpose and Result Guarantees in relation to Cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11 should not be disturbed;
(iv)   the Group Members are precluded by s 275 of the ACL and s 16 of the Civil Liability Act from establishing that Scenic is liable pursuant to s 267(4) of the ACL to pay damages for distress and disappointment by reason of Scenic’s breach of the Purpose and Result Guarantees;
(v)   the Group Members’ claims for compensation for reduced value pursuant to s 267(3)(b) of the ACL by reason of Scenic’s breach of the Care Guarantee in relation to Cruises 4, 5, 6 and 7 remain to be determined by the primary Judge;
(vi)   the Group Members’ claims for compensation for reduced value pursuant to s 267(3)(b)…

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: [2018] NSWCA 300
Decision Date: 07 December 2018

CaseChat Overview and Summary

Scenic Tours Pty Ltd was the defendant in representative proceedings brought by Mr. Moore, representing a group of individuals who had purchased tours from Scenic Tours. The dispute concerned allegations of misleading and deceptive conduct in relation to the tours. The matter came before the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issue before the Court of Appeal was the determination of costs orders in relation to certain agreed common questions that had been answered by the court. The court was required to consider how the costs associated with these common questions should be allocated between the parties, particularly in light of the representative nature of the proceedings.

The Court of Appeal made an additional order regarding costs, directing that the Agreed Common Questions be answered in accordance with a specific document, Annexure A, which was attached to the court's reasons for judgment. This indicates that the court resolved the specific questions posed, and the costs orders would likely reflect this resolution and the outcome of those answers.

Orders

Orders of the court

The following additional order is made:

14. The Court answers the Agreed Common Questions in the manner set out in the document entitled “Agreed Common Questions and Answers”, being Annexure A to the Court’s reasons for judgment in Scenic Tours Pty Ltd v Moore (No 2)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Scenic Tours Pty Ltd v Moore (No 2) [2018] NSWCA 300
Hearing dates:	On the papers
Decision date:	07 December 2018
Before:	Payne JA, Sackville AJA, Barrett AJA
Decision:	The following additional order is made: 14. The Court answers the Agreed Common Questions in the manner set out in the document entitled “Agreed Common Questions and Answers”, being Annexure A to the Court’s reasons for judgment in Scenic Tours Pty Ltd v Moore (No 2)
Catchwords:	Representative proceedings – answers to common questions – costs orders
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Scenic Tours Pty Ltd v Moore [2018] NSWCA 238
Category:	Procedural and other rulings
Parties:	Scenic Tours Pty Ltd (Appellant) David Moore (Respondent)
Representation:	Solicitors: SWS Lawyers (Appellant) Somerville Legal (Respondent)
File Number(s):	2017/282822
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2017] NSWSC 733 Date of Decision: 31 August 2017 Before: Garling J File Number(s): 2014/223271