Civil and Administrative Tribunal New South Wales Medium Neutral Citation: James Jennings & Itohan Omoregbee v Groveborough Pty Ltd t/as Koala Park Resort [2015] NSWCATCD 67 Hearing dates: 20 May 2015 Decision date: 24 June 2015 Jurisdiction: Consumer and Commercial Division Before: M McCue, General Member Decision: The proceedings are dismissed. Catchwords: Applicants' entitlement to a refund of payment for accommodation Legislation Cited: Part 5, Schedule 4, Civil and Administrative Act 2013; Sections 3(a); 3(1)A and 7 Consumer Claims Act 1998 ["the Act"] Category: Principal judgment Parties: James Jennings& Itohan Omoregbee(applicants) Groveborough Pty Ltd t/as Koala Park Resort (respondent) Representation: Applicants: In person Respondent: Karen Lyn Woodcroft – by telephone File Number(s): GEN 15/13692 Publication restriction: Nil REASONS FOR DECISION Application 1. The applicants seeks recovery of a refund for payment of three (3) nights accommodation at the respondent's resort known as Koala Park in Phillip Island Road, Cowes, Victoria. 2. The respondent was given leave to appear by telephone at the hearing on 20 May 2015. Jurisdiction 1. On the establishment date, 1 January 2014, the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 amended certain statutes which previously conferred jurisdiction on now "abolished" tribunals. NCAT has jurisdiction to hear and determine relevant matters in place of the "abolished" tribunals. 2. From 1 January 2014, the Residential Tenancies Act was amended. The definition of "Tribunal" was changed in that Act from the CTTT to NCAT - see cl 4.34 item [2] in Schedule 4 to the Civil and Administrative Legislation (Repeal and Amendment) Act. 3. As a result of the amendments, from 1 January 2014, I am satisfied that NCAT has jurisdiction to hear the application made pursuant to the provisions of the Consumer Claims Act 1998. Appearances 1. The applicants appeared in person. 2. The respondent's representative, Ms Woodcroft, appeared by telephone. Lyn Woodcroft is the current manager of the resort. The legislation - Matters for consideration 1. Pursuant to the provisions of section 3(a) of the Act, the definition of a "consumer" includes a natural person. 2. Pursuant to section 3 (1) A of the Act, "a "consumer claim" includes (a) a claim by a consumer for the payment of a specified sum of money, that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services. Jurisdiction in respect of consumer claims 1. Section 7 of the Act provides that the tribunal has jurisdiction to hear consumer claims (1) The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. (2) Supply or agreement made, or supply intended to be made, in New South Wales The Tribunal has jurisdiction to hear and determine a consumer claim only that includes (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). 1. I am satisfied that the applicants are consumers. Pursuant to section 7(2) (c) of the Act, the supply of goods and services was one to which the Act applies, notwithstanding the services were supplied in Victoria. Background 1. The applicants arranged to stay at respondent's resort for 3 nights from 30 December 2014 to 1 January 2015. 2. The applicants gave evidence that they visited the respondent's web-site, and then paid a deposit of $205.00 to secure the booking. The balance of $410.00 for the accommodation selected was payable on 30 December 2014. There was no issue that $410.00 was paid at the time of the applicants' arrival on 30 December 2014. 3. The accommodation comprised of a 2 bedroom cabin with a bathroom. The family arrived at the resort in the early evening of 30 December 2014. The applicants' evidence was that the garbage bins [albeit later in the day] were overflowing. The bins were located near the front door of the cabin. There was also rubbish in the general BBQ areas at the resort. 4. Mr Jennings, on behalf of the applicants, said that the cabin did not meet his expectations given the interior of the cabins shown on the web-site. I will come back to this later in the respondent's evidence. 5. Prior to the arrival at the resort on 30 December 2014, the applicants had been driving all day with 2 young children. The applicants intended to take a shower [that evening]. The applicant complained that the temperature of the water was either "boiling hot" or "freezing cold". There were some instructions in the cabin about how to operate the shower. The applicant's evidence was that he followed those instructions though, on his view, it made no difference to what I shall call the extremes of temperature of the shower water. 6. Mr Jennings complained about the shower to the resort manager the next day. The applicants said that it was their intention to leave the resort on 31 December 2014. They were not happy with the standard of accommodation and they wished to have two nights' accommodation refunded to them ($410.00). 7. On the booking form the following words were noted: "Management reserves the right to approve a refund " 1. The management refused to refund the monies. Shortly after the refund was refused, the applicants' evidence was that they were told to leave the resort, and if necessary, the owners would call the police. There was some issue about being given a copy of the receipt for the payment of the monies. As I said, there was no issue that the monies had been paid. 2. The police came and spoke to both parties. The police indicated that this was not a police matter. Shortly, thereafter on 31 December the applicants left the resort. 3. The applicants main complaints were about the shower; the state of cleanliness of the bathroom; the dust in the drawers and some stained linen coverlets on the beds. 4. The applicants' evidence was that they made arrangements for other accommodation on the island for the remaining days of their stay after they left the resort on 31 December 2014. 5. The applicants submitted a number of documents marked exhibit "A" that depicted photographs of a rubbish bin in the cabins and overflowing bins in a BBQ and general area. There were also some unidentified stains on the coverlet over the bedding. Some of the drawers showed signs of wear and tear. Some photographs were tendered of what the applicants suggested was some grime around a tap in the bathroom, as well as some close ups shots of dark grouting in the shower. The applicants allege this was a result of grime in that area. 6. Karen Lyn Woodcroft gave evidence, by telephone, on behalf of the respondent, in a simple and straightforward manner. 7. She said that the property was "billed" as a motel, though there are options to bring your own sheets and towels to minimise accommodation costs. The resort also has caravan park accommodation available. Ms Woodcroft said that there had been a recent change in the management of the park. 8. The respondent submitted that the style of accommodation was more suited to school and group accommodation. There was no quarrel that it was "low cost" accommodation. By reference to a booking sheet, Ms Woodcroft gave evidence that the applicants had opted for the cheapest version of accommodation available. Basically, "bring your own everything" including bed linen, towels and utensils. 9. This has some relevance in relation to the evidence given by the applicants referencing the web-site. The cabins advertised on the web-site were serviced. The web-site said that there was another option available. The respondent gave evidence that the cheapest option (the applicants' accommodation) was not advertised (other than by way of narrative) on the website. 10. The respondent relied upon a notation on the receipt that formed part of the applicants' evidence that the applicants had attempted to cancel the booking on 28 November 2014. The male applicant had spoken to a person at the resort. That person had told Mr Jennings, one of the applicants, about the resort's cancellation policy. An administrative fee of $30.00 was payable up to 23 December, and thereafter, as I understood the evidence, any refund was subject to the discretion of management. 11. The respondent recalls that the applicant and his family arrived at about 6-30 pm on 30 December 2014. The applicants filled in the form, paid the balance of the fees and were given keys to the cabin. 12. The respondent recalls that the male applicant came back to the office to enquire about the shared BBQ area facilities for the preparation of an evening meal. The applicant had no utensils to progress the planned evening meal, spaghetti bolognaise. Graciously, Ms Woodcroft gave the applicant saucepans and spoons so that he could take advantage of the cooking facilities at the resort. 13. The office closed at around 9 pm on 30 December 2014, although the respondent's representatives live on site. There was no further attendance by the applicant at the office that evening. 14. The male applicant attended the office at around 10.30am the next day. He had seen microwaves being delivered in boxes at the resort. He asked whether he could have a microwave in his cabin. The management agreed with that request. There was also some conversation about the utensils which the respondent had provided to the applicant. The applicant had just left the utensils in the BBQ area and had not returned them to the office. 15. The respondent recalls that the applicant (after the conversation about the microwave and the utensils) said words to the following effect: "By the way I can't seem to get the shower working: it is either boiling hot or freezing cold." 1. The respondent suggested that perhaps the pilot light may have gone out at the cabin though this seemed unlikely given that hot water was available. A representative was sent down to the applicants' cabin to check whether this was the case. 2. The respondent also said that the shower water heating unit was a shared facility and that there had been no complaint from the adjacent cabin occupiers. The applicant was offered some alternative showering arrangement. The respondent suggested that the family could use a showering facility in a recreational area not far from the cabin. The applicant was not engaged by the offer. 3. The male applicant left the office and then returned around 11.00 am and said that he was proposing to leave the resort and was seeking a refund for the balance of the accommodation. The respondent explained that a refund was not possible. The children travelling with the applicants were in the office at this time. Mr Jennings then said words to the effect: "What sort of hotel is this if you can't supply bed linen." 1. The respondent was at pains to say that there were various levels of accommodation available, and as I have said before, according to the respondent's evidence, Mr Jennings favoured the bottom of the range "no frills" style of accommodation that was not advertised in any photographs on the web-site. This was basic bring your own style accommodation available at a more modest cost than that advertised for the serviced rooms, with linen and additional facilities provided. 2. Matters escalated in the late morning on 31 December 2014. The respondent's evidence was that Mr Jennings and his partner started yelling at Ms Woodcroft and her staff. Ms Woodcroft said that her foster children were close by and they were upset by the events, as were the children travelling with the applicants. Ms Woodcroft said that the children became so upset that they started to cry. 3. The respondents also called the police and the police told the applicants that they should leave the site. 4. As to the specifics of the applicants' complaints about the garbage near the cabin and in the BBQ areas, Ms Woodcroft said that the bins are emptied overnight; the applicants had arrived at the end of the day. As to the bathrooms, Ms Woodcroft said that the bathroom was sealed with a black grout between the tiles. The respondent assured the applicants that the bathrooms had been "scrubbed to an inch of their lives". She said that she was very particular about cleanliness. There was tinge of orange on the basin that was a rust stain. On any view, she agreed that the resort is somewhat run down and was used as a camp for many years. The cabins house up to eight guests. 5. The respondent said that she had received no complaints about the cleanliness of the lodging from any other guests. The respondent said that dust sheets were on top of the beds. The applicants needed to supply their own sheets. The stains on the dust coverlets were bleach stains. 6. Ms Woodcroft gave evidence that the applicants had received the accommodation that was the cheapest in the complex in accordance with the male applicant's request. The respondent said that during the premium season, the cost of accommodation is up to $350.00 per night. The applicants said that they had arranged other accommodation of a superior standard [at a lesser cost] though provided no evidence to that effect. 7. There were competing versions of what was said, by whom and when. However, on the evidence before me, I can make the following findings: 1. No photos of the lower end of the range accommodation were posted on the web-site, only a narrative describing the "room only" accommodation that the applicants selected; 2. The accommodation could be described as a "bring your own no frills style" accommodation: the accommodation was simple and clean though dated; 3. The respondent had provided lower end of the range accommodation to the applicants at a lesser cost than that available for the serviced cabins; 4. The adjoining accommodation sharing the shower heating facility made no complaint about the temperature of the water; this may suggest that the applicant had problems following instructions about the operation of the shower. 1. There are no grounds for the tribunal to make a finding that the applicants are entitled to any refund for their accommodation for either the entire period or for the two nights that they did not spend at the resort after their arrival on 30 December 2014. 2. Given that there was an enquiry made about cancellation in around 28 November, it may very well have been that there was some further consideration being given to the suitability of this budget style of accommodation for the family holiday on Phillip Island prior to the applicants' arrival at the resort on 30 December 2014. 3. The application for a refund is dismissed. M McCue General Member Civil and Administrative Tribunal of New South Wales 24 June 2015 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: 28 August 2015