Tambree v Travel Compensation Fund

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Reported Decision:

 (2004) ATPR (Digest) 46-247
(2004) Aust Contract Reports 90-195

Court of Appeal


CITATION: TAMBREE v TRAVEL COMPENSATION FUND & ORS [2004] NSWCA 24
HEARING DATE(S): 29 October 2003
JUDGMENT DATE:
26 February 2004
JUDGMENT OF: Mason P at 1; Sheller JA at 2; Ipp JA at 157
DECISION: 1 Appeal and cross-appeal allowed; 2 Set aside that part of order 1 which refers to the fourth and fifth defendants and add the following order:; 1A In favour of the plaintiff against the fourth and fifth defendants in the sum of $13,320 together with interest on the said judgment sum in accordance with the Supreme Court Act and Rules from 20 September 1999 to 15 November 2002 in the sum of $4,216 being a total of $17,536; 3 The respondent Travel Compensation Fund to pay the appellant and cross-appellant their costs of the appeal and cross-appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 4 Liberty to the appellant and cross-appellant within seven days to make application to vary costs order 4 made by Austin J.
CATCHWORDS: Travel Compensation Fund - accountant - auditor - misleading and deceptive conduct - s42 Fair Trading Act - whether breach of duty of care - whether fact that respondent continued unlicensed in business of travel agent severed chain of causation
LEGISLATION CITED: Evidence Act 1995
Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Travel Agents Act 1986
CASES CITED: Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 26 FCR 112
Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
Chester v Afshar [2003] QB 356
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Connor v Blacktown District Hospital (1971) 1 NSWLR 713
Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Gardam v George Wills & Co Ltd [No 1] (1988) 82 ALR 415
Henville v Walker (2001) 206 CLR 459
Jones v Dunkel (1959) 101 CLR 298
Kewside Pty Ltd v Warman International Ltd (1990) ASC 58821
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Millman v Rochester Railway Co 3 App Div 109; 39 NYS 274 (1896)
Modbury Triangle v Anzil (2000) 205 CLR 254
Rahman v Arearose Ltd [2001] QB 351
Ruddock v Taylor (2003) NSWCA 262
The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525
Voli v Inglewood Shire Council (1963) 110 CLR 74
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Yorke v Lucas (1985) 158 CLR 661

PARTIES :

 Robert Tambree t/as R Tambree & Associates - Appellant
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Details
Case
[2004] NSWCA 24
Decision Date

CaseChat Overview and Summary

Tambree (the plaintiff) brought proceedings against the Travel Compensation Fund and others, alleging misleading and deceptive conduct in contravention of section 42 of the *Fair Trading Act 1987* (NSW) and a breach of a duty of care. The dispute concerned losses incurred by the plaintiff due to the conduct of a travel agent. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the conduct of the travel agent constituted misleading or deceptive conduct, whether the Fund owed a duty of care to the plaintiff, and if so, whether that duty was breached. A further issue was whether the fact that the travel agent continued to operate unlicensed severed the chain of causation between any breach of duty by the Fund and the plaintiff's loss.

The Court of Appeal found that the conduct of the travel agent did amount to misleading and deceptive conduct. The Court also determined that the Fund owed a duty of care to the plaintiff. However, the Court held that the chain of causation was not severed by the travel agent's continued unlicensed operation. The Court allowed the appeal and cross-appeal, setting aside part of the primary judge's order and substituting a new order in favour of the plaintiff against the fourth and fifth defendants for a sum of $13,320 plus interest, totalling $17,536. The respondent, the Travel Compensation Fund, was ordered to pay the appellant's and cross-appellant's costs of the appeal and cross-appeal.

Orders

Orders of the court

1 Appeal and cross-appeal allowed; 2 Set aside that part of order 1 which refers to the fourth and fifth defendants and add the following order:; 1A In favour of the plaintiff against the fourth and fifth defendants in the sum of $13,320 together with interest on the said judgment sum in accordance with the Supreme Court Act and Rules from 20 September 1999 to 15 November 2002 in the sum of $4,216 being a total of $17,536; 3 The respondent Travel Compensation Fund to pay the appellant and cross-appellant their costs of the appeal and cross-appeal but to have a certificate under the Suitors' Fund Act 1951 if so qualified; 4 Liberty to the appellant and cross-appellant within seven days to make application to vary costs order 4 made by Austin J.

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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