Ford vTripADeal Pty Ltd [2021] NSWCATCD 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ford vTripADeal Pty Ltd [2021] NSWCATCD 57 Hearing dates: 28 October 2020 Date of orders: 14 January 2021 Decision date: 14 January 2021 Jurisdiction: Consumer and Commercial Division Before: W Priestley General Member Decision: 1.Leave is granted for the applicants to amend their claim to seek compensation of $11,160 and costs of $1600. 2.The application is dismissed. Legislation Cited: Fair Trading Act 1987 (NSW) Australian Consumer Law (NSW) Category: Principal judgment Parties: Edilia Ford (First Applicant) Geofrey Ford (Second Applicant) TripADeal Pty Ltd (Respondent) Representation: First and Second Applicant (Self-represented) Respondent (Self-represented) File Number(s): GEN 20/28046 Publication restriction: Nil

Reasons for Decision

The application 1. By application lodged 29 June 2020, an order is sought the respondent pay compensation to the applicants in the amount of $8174.22. 2. The application states the bases of the claim, are that the respondent engaged in misleading and deceptive conduct, and the services provided by the respondent were not fit for purpose. Those bases were expanded upon after the application was lodged, to also include negligence, and a failure to comply with the guarantee provided by section 60 of the Australian Consumer Law (ACL), and appear at page 113 of the applicants' folder of documents. Although the applicants did not specifically allege the respondent had breached the terms of the contract between the parties (other than section 60 ACL, and an implied term that the respondent would not negligently perform its obligations under the contract), that issue is also dealt with in this decision. 3. The amount claimed for compensation in the application, is calculated on the basis the value of a tour package the applicants' purchased from the respondent, was 38% of the $7,674.99 they paid for it (a loss of value of $4,758.49), plus $3,315.73 in extra airfares they say they should not have incurred, plus $100 loss of an unused prepaid seat allocation. At a conciliation hearing on 25 August 2020, the applicants sought to amend the claim to seek $11,160, being a full refund of the purchase price plus the transaction costs, and the cost of 2 single flights from Budapest to Sydney ($3,315.73) which they bought to return home, rather than wait for the respondent to arrange return flights for them. The applicants also claimed costs of $1600, being 60 hours of their time at $25 per hour, in preparing their case, and $100 for postage and photocopying. The Tribunal did not grant leave at either the conciliation hearing or final hearing, for the applicants to amend their claim, but as there is no prejudice to the respondent in doing so, leave for the claim to be amended in that way is now granted. 4. The application relates to travel services provided by the respondent, namely the arranging of holidays, including flights, accommodation, and tours. The respondent's offices are in Byron Bay NSW, and that is where the services were provided. The applicants are consumers, and the respondent is a supplier, as those terms are used in the Fair Trading Act NSW. The application is a "consumer claim" as defined in section 79E of that Act, and the Tribunal has jurisdiction to hear and determine it under section 79J.