Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Paterson v Lund atf Nenedale Family Trust t/as Kingscliff Accommodation [2024] NSWCATAP 78 Hearing dates: 12 March 2024 Date of orders: 09 May 2024 Decision date: 09 May 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Burton SC, Senior Member Decision: Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: CONSUMER LAW — failure to supply particular accommodation — offer of alternative accommodation — right to claim refund where said no benefit received — acceptance of alternative accommodation for same period — whether total failure of consideration — claim for wasted expenditure ancillary to accommodation cost — damages for distress and disappointment — assessment of damages Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 Collins v Urban [2014] NSWCATAP 17 Hadley v Baxendale (1854) 9 Exch 341 Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 Texts Cited: Nil Category: Principal judgment Parties: Stephen Laurence Paterson (First Appellant) Rosemary Anne Paterson (Second Appellant) Janene Lund atf Nenedale Family Trust t/as Kingscliff Accommodation (Respondent) Representation: Appellants (self-represented by First Appellant) Respondent (self-represented) File Number(s): 2023/00445469 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 10 November 2023 Before: S Hanstein, General Member File Number(s): 2023/00382718 (formerly GEN 23/34875) REASONS FOR DECISION Introduction 1. This appeal concerns a booking for holiday accommodation at Kingscliff. 2. The appellants, who are consumers, had originally made a booking to stay in a particular apartment (which we shall refer to as "No 7"). This booking was made in 2021. However, owing to the Covid pandemic the booking needed to be changed and was rescheduled for the period of 14 to 21 March 2023 (March booking). 3. The booking had originally been made through a different company, which we will refer to as Sales and Rentals. Sales and Rentals also arranged the March booking. 4. After the March booking was made, in late 2022, responsibility for the March booking and the management of the particular holiday accommodation was transferred to the respondent. 5. Presently, there is no dispute that the effect of what occurred was that the appellants' contract was novated to the respondent and that the respondent was responsible for delivering the accommodation and services for the March booking. 6. The essence of the appellants' claim was that they had specifically booked No 7, having stayed there before. When they arrived on 14 March 2023, they were informed No 7 was not available. They were then offered and took up alternative accommodation in the same building. 7. The appellants say that they did not receive the holiday they were promised. They sought damages from the Tribunal being a refund of the accommodation cost of $1,820, together with the cost of flights, taxis and boarding expenses for their dog. The amount claimed on their application to the Tribunal was $8,331.00. This included a claim for distress and disappointment. There was also a claim for costs of the proceedings. 8. The proceedings were heard by the Tribunal on 10 November 2023. Having considered the entitlements to an award for damages both for breach of contract and pursuant to s 267(4) of the Australian Consumer Law (NSW) (ACL), the Tribunal awarded damages calculated as a 60% refund of the booking fee of $1,820.00, being an amount of $1,092.00 (decision). This amount was to be paid within 14 days. The Tribunal provided written reasons for its decision (reasons). 9. The appellants appeal the decision. Notice of Appeal and history of appeal proceedings 1. The Notice of Appeal is dated 8 December 2023. The appeal was filed in time. 2. The grounds of appeal are as follows: We consider the decision of the Tribunal to be in-appropriate (sic) and represents a substantial (relative) miscarriage of justice because it was not fair and equitable in our special circumstances, and was against the weight of the evidence, and particularly given – (i) by the common-sense meaning of the word "'evidence", the Tribunal should have no regard for the oral (3rd party) submission of the Respondent as to the events of March 14 as depicted in the un-signed, no name, un-dated alleged staff member statement at page 3 of the Respondents file submitted dated 22 September 2023. We believe such oral submissions to be hearsay, & the alleged statement to be in-admissable as evidence; (ii) that the Tribunal failed to make any reference to, & hence seemingly had no regard for, the very significant evidentiary implications for our attempted holiday arising from the health condition endured by the writer's wife as stated in Dr Neville-Towle's statement of 25 August 2023 at p34 of our (Sept 8) Submission. (iii) which accordingly meant we suffered material stress arising from the breach of contract, & derived no benefit from the experiences on & following 14 March 2023, (iv) further then leading to the improper conclusion by the Tribunal of us having had benefit from the assumed holiday experience leading to denial of any compensation related to reasonably foreseeable travel and similar costs attached to the breach of contract. 1. As to seeking leave to appeal, it was said that in a number of respects the decision was not fair and equitable or against the weight of evidence. In general terms, these grounds concerned: 1. the weight given by the Tribunal to an unsigned statement given by an unidentified employee of the respondent; 2. the circumstances surrounding the accommodation provided in March and what occurred; 3. the medical evidence concerning Mrs Paterson and the claim that the appellants received no holiday at all; and 4. the Tribunal's conclusion that the appellants did not suffer a loss in terms of travel and associated costs. 1. The appellants filed submissions in support of their appeal, including documentary evidence from the original hearing. However, the appellants did not file a transcript of the hearing on 10 November 2023, despite directions of the Appeal Panel to do so if it was to be relied upon. 2. The respondent did not file a Reply to Appeal. However, we did receive documents provided to the Tribunal at the hearing at first instance, setting out what the respondent said occurred. We will refer to these documents as the respondent's bundle or RB. 3. The hearing of the appeal occurred on 12 March 2024. Mr Patterson appeared for both appellants, by telephone. Ms Lund appeared by video link. 4. Having identified the documents which were provided to us for the purpose of the appeal, the parties were afforded an opportunity to make oral submissions. The appellants' primary position was that the award was inadequate and that the decision to award 60% of the accommodation costs was arbitrary. When asked what amounts were now sought in this appeal, we were referred to the list of items recorded in the appellants' bundle (AB) at page 20. These items were: 1. Airfares – $277 2. Car hire in Gold Coast – $434 3. Dog boarding costs – $377 4. Legal fees and costs $488 5. NCAT application cost $15 6. ASIC search – $18 7. Airfare of Ms Gillard (daughter) $553 8. Officeworks stationery costs – $44 9. Miscellaneous costs (including petrol parking and train fares) – $255 10. Inconvenience and material stress – $4,250 These items total $6,711.00. 1. We asked Mr Patterson whether he was raising a question of law. Having said he was not competent to do so and did not seek to do so, he made clear that his claim was that the facts of this case should have entitled the appellants to a full refund of the amount claimed. In this regard, as noted above, leave is sought to appeal because the decision was not fair and equitable or was against the weight of evidence. 2. New evidence was relied upon in the form of a statement from Ms Gillard dated 12 January 2024 (new evidence). We shall return to the question of admitting new evidence below. 3. The was a challenge to the Tribunal relying on an unsigned statement provided by the respondent in support of her position. This statement was apparently from the person who dealt with the appellants on their arrival at Kingscliff. However, the appellants agreed that this matter was not raised at the original hearing. 4. The respondent's submission was, essentially, that the appellants stayed at the alternative property and received a benefit. The respondent relies on evidence that the appellants expressed thanks for their stay and relied on communications in support of this contention. Consideration 1. There is a right of appeal on a question of law. Otherwise leave to appeal is required: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In order to be granted leave to appeal, an appellant must show that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, against the weight of evidence or that there was significant new evidence that was not reasonably available: Sch 4, cl 12(1). 2. In the new evidence, for which leave is sought, Ms Gillard sets out events which occurred on 18 March 2023, being the period of the stay at Kingscliff. This evidence was clearly available and could have been provided to the Tribunal for the hearing on 10 November 2023. Consequently, it should not be permitted on this appeal: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. 3. As to the substantive appeal, it concerns a claim that the award of damages was inadequate. In short, the appellants say that they should have been entitled to a full refund, including related costs of travel and providing accommodation for the dog. 4. Notwithstanding Mr Patterson saying he was not raising a question of law, arguably his challenge does identify such a question, namely, whether a person who attends a holiday, for which the supplier of goods and services does not provide all that is promised, can claim a refund if that person is offered by the supplier alternative goods and services which are accepted. In essence the appellants' claim is for wasted expenditure and that they received no value. 5. The decision of the Court of Appeal in Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 (Scenic Tours) dealt with the assessment of compensation for damages in circumstances where part of the holiday being offered by the supplier was not delivered. The case concerned the claim for damages arising from the consumer guarantees under the Australian Consumer Law (NSW). The claimant had not received the full benefit of the promised tour but had undertaken part of the tour. The claimant sought to recover all airfares because he had not received what was promised. 6. Two propositions from this decision are relevant to the present appeal. First, to obtain a full refund, there must be a total or substantial failure of consideration or, to put simply, no real benefit derived from the supply. 7. In this regard, the observations of Kirk JA in Scenic Tours at [18]-[20] (with whom Ward P agreed) concerning the decision of the High Court in Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 illustrates the legal position: 18 A case of some potential relevance to this matter is Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4, involving another unpleasurable pleasure cruise. A cruise ship sank off the South Island of New Zealand on the tenth day of a 14 day cruise. A passenger, Mrs Dillon, sought damages. The amount awarded by the trial judge included $5,000 damages for disappointment and distress and $1,417 as a refund of that part of the purchase price of the cruise which had not already been refunded (the disputed sum related in effect to the 10 days of cruising she had already enjoyed). The High Court upheld the award for disappointment but overturned the refund. 19 Mrs Dillon had sought to justify the refund either on contract or as founded on a restitutionary claim for total failure of consideration. The Court rejected the restitutionary claim on the basis that there had not been a total failure of consideration. But in any event, whether put in terms of restitution or contract, a refund was not payable in circumstances where the contract was being sued upon. Mason CJ said that "full damages and complete restitution will not be given for the same breach of contract" (at 359). Deane and Dawson JJ explained at 379: [Mrs Dillon] has sought and obtained an order against Baltic for compensatory damages for Baltic's failure to perform its contractual promises to her. In particular, she has received a refund of a proportionate part of the fare and has obtained and will retain … the benefit of an award of damages for the disappointment and distress which she sustained by reason of Baltic's failure to provide her with the full pleasure cruise which it promised to provide. In these circumstances, Mrs Dillon has indirectly enforced, and indirectly obtained the benefit of, Baltic's contractual promises. 20 As Gaudron J put it, pithily, "[i]f Mrs Dillon were to receive damages and a refund of her fare as well, she would, in effect, take the benefit of the contract without an obligation to give consideration for it" (at 387; see also Brennan J at 372, McHugh J at 406). For Mrs Dillon to have sued for both breach of the contract and for return of the price of the contract she would, in effect, have been seeking to claim on a no-transaction basis, where doing so would conflict with the basal premise that there was a contract. 1. Secondly, costs incurred, which are ancillary to obtaining the benefit and not part of the purchase price for the services, will only be recoverable as wasted costs if no real benefit from the contracted supply is derived or it could be said, in the circumstances that occurred, that particular costs or a portion of those costs were unnecessarily incurred because the actual supply was limited compared with that which was promised. 2. In Scenic Tours at [39]-[42], Kirk JA said: 39 … The reliance on the notion of wasted expenditure, as discussed by Mason CJ and Dawson J in Amann, is inapposite. As addressed above at [12]-[14], the law may allow recovery of wasted expenditure in contract cases "where it is not possible to predict what position a plaintiff would have been in had the contract been fully performed" (quoting Mason CJ and Dawson J in Amann at 86). But this is not such a case. Such a prediction is not only possible but has been made. 40 If Scenic Tours had complied with the consumer guarantees then Mr Moore and the relevant group members would have received the tour that they had paid for, and the implicit promise of enjoyment would have been fulfilled. Scenic Tours did not comply. The claimants have thus been awarded a sum to compensate for the lesser value tour that they received, and a further sum for distress and disappointment to compensate for their lack of enjoyment. In these ways the Court has sought to put them in the same position, as best as money is able, as if the consumer guarantees had been fulfilled. 41 Another way of expressing the problem with the award for airfares is to note the analogy with Baltic Shipping. The wasted airfares at issue here were not part of the consideration paid by the claimants to Scenic Tours. However, they were an inevitable and necessary cost of being able to undertake the river cruises. The premise of the claim for the airfares is that the claimants in question should be returned to the position which they would have been in if they had not cruised at all. That is inconsistent with the other two heads of damage, which presuppose that they did go on the cruises. Mrs Dillon was approbating and reprobating by claiming damages for breach of contract whilst also seeking a refund of the contract price. The claimants here are approbating and reprobating by claiming damages for breach of the consumer guarantees whilst also seeking a refund of an inevitable cost of being in a position where the consumer guarantees were or were not fulfilled. 42 It is not necessary to consider here whether there are some circumstances in which a separate cost incurred by the consumer, not being part of the consideration payable for the transaction, could be recovered pursuant to s 267(4) of the ACL on the basis, for example, that what was obtained was of no value at all. Here, the breach of the consumer guarantees was not suggested to be so substantial as to render the services provided worthless. The primary judge effectively noted as much at [39]-[40]. 1. In the present case, whether the claim is in contract or not, the fact is that the appellants did not return home when the accommodation was unavailable. They did not treat the contract as repudiated and terminate the contract. They did not reject what was offered. Rather, they accepted and receive the benefit of a different supply, namely, alternative accommodation for the whole of the period as originally planned. Acceptance of the alternative services meant there had not been a total failure of consideration. 2. Consequently, the appellants are not entitled to be compensated for costs which are necessarily incurred in staying at Kingscliff (including flight, hire car and dog boarding costs), only costs that are wasted. The appellants did not demonstrate that any portion of those costs were wasted in the sense already stated that they were unnecessarily incurred because the actual supply was limited compared with that which was promised. However, they are entitled to damages for distress and disappointment (but not in the personal injury sense) and damages for the reduced value of the holiday. 3. From our review of the reasons in this case, it appears the Tribunal correctly approached the task of assessing damages. The Tribunal was entitled to reject the claim for restitution and the finding that a benefit was derived was available on the evidence. Consequently, there was no error of law. 4. The next question is whether the Tribunal erred in its assessment of damages. This is a matter for which leave to appeal is required. The principles concerning the grant of leave are set out in Collins v Urban [2014] NSWCATAP 17 (Collins). 5. Of the assessment of compensation, the Tribunal said at [16]-[19] of the reasons: 16. I am satisfied, for the following reasons, that compensation should be paid to the applicant in the sum of $1,092, which reflects a 60% refund of the amount paid for the accommodation. 17. I am satisfied there were some significant differences between the apartment the applicant had booked and the apartment they stayed in, and there were some cleaning issues, although I accept some further cleaning was done. I accept also that the applicant suffered some distress and disappointment as a result of the booked apartment not being available. The applicant did however receive the full period of accommodation in another apartment in the same complex, and was able to complete the holiday. To not accept alternative accommodation to proceed with the holiday would, in my view, have been to fail to mitigate loss. 18. I am not satisfied the applicant received no benefit at all from the accommodation and holiday. I am not satisfied the applicant suffered loss in terms of incurring travel and other consequential costs for no benefit. I am not satisfied any travel or other associated costs are loss flowing from, or suffered as a result of, not being able to stay in apartment 7 Drift North. 19. In all the circumstances, I am satisfied the loss flowing from the respondent's breach, or that is reasonably foreseeable as a result of the failure to provide services with due care and skill, is the difference between the applicant's preferred accommodation and where they did stay, and consequent distress and disappointment. Taking into account the difference between what they bargained for and what they received, and the consequent distress and disappointment, I am satisfied an amount reflecting 60% of the price paid is reasonable compensation. 1. Having rejected the proposition that no benefit was received from the holiday trip, the Tribunal decided that in assessing compensation there was a need to deal with both the reduced value of what was received and make an allowance for distress and disappointment. There was no error in this approach. 2. It is relevant at this point to note that Mr Paterson accepted that the issues concerning his wife's health and disabilities were not matters raised with Sales and Rentals at the time the contract was formed. Accordingly, in so far as damages are to be assessed in contract, no special damages should be awarded of the type referred to in the second limb of Hadley v Baxendale (1854) 9 Exch 341, because such damage would not be in the reasonable contemplation of the parties at the time the contract was entered into. That of course does not prevent an award for damages for distress and disappointment. 3. In Collins at [77]-[78], when considering the requirement for the grant of leave under Sch 4, cl 12(1)(a) and (b) of the NCAT Act, because the decision was not fair and equitable or against the weight of evidence, the Appeal Panel said: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 1. As to the exercise of discretion, the Appeal Panel continued at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; … 1. The assessment made by the Tribunal was based on a reduction in value of the holiday promised. The reduction was 60%. This was said to include both the reduced value to the applicants of the accommodation and damages for distress and disappointment. 2. Such assessments necessarily involve a degree of estimation, an approach accepted by the High Court in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 per Mason CJ and Dawson J at [31]. 3. In the present case, the amount of compensation was more than 50% of the value paid for the intended holiday in No 7. The facts of this case do not strongly point against the award made to suggest that a higher award, let alone significantly higher award, should have been made. Further, there is no matter of principle or an injustice that is reasonably clear which would warrant the grant of leave. 4. Accordingly, we refuse leave to appeal on the question of the amount of damages awarded. Orders 1. It follows from the above that the following orders should be made: 1. Leave to appeal is refused and the appeal is otherwise dismissed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2024