Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baum v Goway Travel Pty Ltd [2019] NSWCATCD 12 Hearing dates: 29 March 2019 Date of orders: 10 April 2019 Decision date: 10 April 2019 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. In each case the application is dismissed. 2. In each case each party is to bear his or its own costs. Catchwords: Alleged agreement for purchase of travel passes - whether persons with whom the applicant had dealt had any authority to bind the respondent company – whether there was a contract in existence between the applicant on the one hand and the respondent on the other - application of s79U of Fair Trading Act 1987 – whether the applicant is entitled to compensation of damages where benefits already received from the respondent significantly exceed the monies paid to the respondent for them. Legislation Cited: Fair Trading Act 1987 ss79 D; 79E, 79L, 79U Cases Cited: Curtis v Potter & Co Pty Ltd t/as The African Safari Co.[2016] NSWCATAP 196 Egyptian International Foreign Trade Co v Soplex Wholesale Supplies Ltd (The 'Raffaella') [1985] 2 Lloyd's Rep 36 at 41: Fry v Smellie [2012] 3KB 282 at 293 Hoare v McCarthy (1916) 22 CLR 296 Irving v D'Michelle t/as Westside Customs and Mechanical [2015] NSWCATCD 152 Lockyer v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480, at 503 Lysaght Bros & Co Ltd v Falk [1905] 2CLR 421 at 427 Reckitt v Barnett, Pembroke and Slater Ltd [1929] AC 176, at 182. Rolled Steel Ltd v British Steel Corpn (1986) Ch 246 State Rail Authority of New South Wales v Consumer Claims Tribunal [1988] 14 NSWLR 473 Steve Miller and Anor v Grosvenor Constructions Pty Ltd [2017] NSWCATCD 42 Texts Cited: Cheshire and Fifoot Law of Contract Category: Principal judgment Parties: Graham Baum (Applicant) Goway Travel Pty Ltd (Respondent) Representation: Applicant (self-represented) Ms Scott of counsel appeared for the Respondent instructed by Breene and Breene, Solicitors File Number(s): GEN18/50673; GEN18/50688 Publication restriction: Nil reasons for decision Applications 1. On 28 November 2018 Application No. 18/50673 was filed by the applicant seeking a payment of $5,600.00. In that application it was claimed that on 17 November 2015 Mr Baum and his wife purchased a package deal of two Business Class flights and up to 35 days accommodation to be used anywhere in Europe within a five year period for a total price of $5,600.00. 2. Application NO. 18/50688 was also filed on 28 November 2018 claiming a sum of $13,600.00. That application related to a purchase in December of 2015 of two five year Platinum Passes commencing on 1 September 2016 at a cost of $8,500.00 each. It was claimed that those passes included domestic air travel, flying Business Class, domestic accommodation up to seven days in one location totalling 60 days per year and four international trips including four international flights per year, along with 40 days international accommodation, again including up to seven days in one location. The passes also included 60 days of Hertz car hire in major cities and warranted that accommodation would be in properties varying from 4 to 4.5 stars. 3. In relation to the package purchased on 17 November 2015 Mr Baum has claimed a refund of all monies paid on the basis that no travel had been undertaken on that package. He alleged that the packages were purchased with different conditions and claimed that no value had been obtained under that contract. 4. In relation to the Platinum Pass purchased in December 2015, it was claimed that issues arose including last minute cancellations but that travel was stopped in May 2018 and the respondent refused to honour any packages. On that basis a pro rata refund which reduced the $17,000.00 paid down to $13,600.00 was being claimed. 5. Both matters came before the Tribunal on 9 January 2019 when directions were made for the applicant to provide all of his documentation to the respondent and the Tribunal by 16 January 2019 and the respondent to provide all of its documentation to the applicant and the Tribunal by 30 January 2019. 6. Both parties provided their material in accordance with the directions made and the matter was listed for hearing on 29 March 2019. Applicant's Evidence and Submissions 1. In relation to the first claim (GEN18/50673) the documentation provided by the applicant consisted of only eight pages. The first five pages consisted of an email trail commencing with a communication from David Hallifax to Lifestyle Limousines on 12 November 2015 noting that Lisa from Staff Travel was requesting credit card details for Mr Toovey's party. Mr Toovey replied to David Hallifax that the credit card details would be collected by Sunday. 2. Further email communications took place between Mr Hallifax and Mr Toovey on 13 and 14 November and on 15 November Mr Toovey relayed to Mr Hallifax details of a number of credit cards including that of Mr Baum with an authorisation that a sum of $5500.00 was to be billed to that card. Mr Baum was apparently copied in to that email. A little later on the same day Mr Hallifax sent a response to Mr Toovey and copied in others including Mr Baum noting that the accommodation package should read $1600.00 and not $1500.00 as previously suggested and that the total price was increased to $5600. 3. The only other documentation of relevance in the email trail is a note which does not appear to be in the form of an email or an annexure but it simply notes Hi Lisa There are two batches so they can be valid from 1st April 2016 or 1st September 2016. They are not in time for the January batch. They are 5 years validity from these dates. If pax are not intending to travel prior to September 2016 they should pick this option which allows more time to use their tickets. Kind regards Staff Travel There is nothing in that material to indicate any connection with the respondent. 1. A payment summary from an ANZ Platinum card in the name of the applicant shows that on 17 November 2015 a sum of $5600.00 was paid to Goway Travel Pty Ltd Sydney. 2. The remaining document forming part of the evidence in the applicants' first claim is an email from the respondent sent on 29 November 2018 with the subject matter shown as "Family and Friends Update". That email indicated that the respondent was progressing with resolution of appropriate flight claims involving the "Family and Friends Group" and it confirmed that the company was methodically checking and finalising claims where no travel or accommodation had been taken or available by claimants during the previous six years and where it could be confirmed that funds had been paid to Goway directly and not to a third party with no connection to the company. The email requested that persons who had not taken any travel or accommodation and could establish the payment should contact the company by email. It is noted that no reply from Mr Baum to that email has been provided with his evidence. 3. In relation to the claim No. GEN 18/50688 the chain of emails appears to commence from 18 December 2015 with a document which was sent to Mr Hallifax concerning Travel Passes. It is noted that there is nothing to identify the source of that document which appears to be addressed to Lisa from an identity described as Staff Travel. The document appears to relate to 3 and 5 year travel passes from what has been described as the "Travel Pack System", and information is provided concerning economy travel Passes from $3500.00 through to five year Platinum Travel Passes commencing from September 2016 with Business Class air travel from $8500.00 per person. 4. That document was then apparently forwarded from Mr Hallifax to Mr Toovey on 19 December 2015 and on 20 December 2015 Mr Hallifax apparently ordered two five year Platinum Travel Passes as described by Staff Travel. 5. On 26 December 2015 Lifestyle Limousines through Mr Toovey apparently forwarded the information concerning Travel Passes to the applicant herein with a note suggesting that "all trios are on offer but that they were going for the five year Platinum. 6. On 11 January 2016 Mr Baum contacted Mr Hallifax with some enquiry about the five year Platinum Pass and he was advised that on the Platinum Pass he could just about go anywhere in the world with some exceptions. Mr Hallifax enquired whether Mr Toovey had supplied a draft email on the deal. 7. On 25 May 2016 Mr Hallifax sent an email to a number of persons including Mr Baum noting that Lisa had acquired four more Platinum Travel Passes at $8500.00 per person with the only difference being that they would have a starting date of 1 January 2017. He enquired from Mr Baum and others whether they had persons who may be interested. 8. On 30 August 2016 Lisa forwarded a note to Mr Hallifax which simply consisted of a notation to all staff advising that family and friends may have difficulty in obtaining Business Class travel on domestic options. The note went on to invite persons who did not wish to retain their Travel Pass to contact a Staff Travel manager urgently so that the refund process could be undertaken. The remaining parts of the email chain relate to travel bookings using the Travel Passes. 9. The remaining material provided by the applicant relates to travel booking information including e-tickets which establishes that they had been booked through Goway Travel Pty Ltd but apart from that the applicant was unable to produce any evidence to establish that he had received communications by email or otherwise from anyone other than Mr Hallifax with occasional notes from Ms Lisa Comito. It was also evident that any communications from Mr Hallifax were passed on from dhallifax@live.com.au whilst those received from Ms Lisa Comito were sent from lisamareec75@hotmail.com . 10. Mr Baum agreed with the travel itinerary which was Annexure "L" in the respondent's submissions and he also agreed with the Travel Schedule provided by the respondent which showed travel commencing on 28 July 2016 and continuing through until 16 February 2018. Mr Baum did not dispute the Value Schedule produced on behalf of the respondent and conceded that he had received benefits totalling $66,160.05 over that period. In cross-examination he considered that he had benefitted with both himself and his wife taking two flights to Europe with 35 days accommodation on each flight and he noted that the value was very good. He stated he believed he was dealing with the respondent through David Hallifax who was related to Lisa. He conceded that there were no communications sent out from Goway and the terms and conditions did not appear on anything which identified Goway as being the provider. He assumed that he was proceeding as a Family of Friend of Goway although he agreed he did not know anybody associated with Goway directly. In his final submissions he stated that he had purchased in good faith believing he was part of a Family and Friends package. Respondent's Evidence and Submissions 1. In relation to both matters the respondent relied upon a Statement of James Forno dated 1 February 2019 together with copies of all material used by him to calculate the value of benefits provided to the applicant and his wife through the travel passes. Annexed to that statement was a Chronology of the travel undertaken by the applicant and his wife between July of 2016 and February 2018 and the travel benefits in that chronology were conceded by the applicant as travel that he or he and his wife undertook in that period. This travel included a trip from Sydney to Ireland and Italy in July 2016; a trip in December 2016 from Sydney to Hawaii and San Francisco; .a trip from Sydney to Tahiti and Bora Bora in March 2017; a trip provided to a friend from Barcelona to Nice; and a trip in February of 2018 from Sydney to London and return. 2. Domestic travel included trips from Sydney to Perth, Sydney to Ayres Rock, Sydney to Blue Mountains and Sydney to Cairns. All of these trips were conceded and the applicant further conceded that the value for costs paid by the respondent totalled some $66,160.05 with a total $19,412.50 paid out on the Pass which was the subject of the proceedings 18/50673 and trips to the value of $46, 747.55 which were taken on the Platinum Pass referred to in 18/50688 or the other $5,500 Pass. 3. There is nothing in the evidence to identify a particular Pass upon which the trip was taken other than by reference to the times when the Passes were available for travel. 4. Mr Forno stated that he was a contractor retained by the responded to analyse its books and records for the purpose of determining how the various travel passes for Family and Friends came about. Mr Forno noted that the applicants' material contained email correspondence referring to what appeared to be travel packages. He stated that travel packages are not and were never products of the respondent, Goway. He described them as fictitious packages and observed that the packages were never offered to the applicant by the respondent but rather he was merely copied in on an email between Mr Hallifax and Mr Toovey who he understood to be a friend of the applicant. 5. Mr Forno stated that Mr Hallifax was never an employee, contractor or agent of Goway and he never had authority to represent or bind Goway. He observed further that Mr Toovey is not and was never an employee, contractor or agent of Goway and Mr Toovey never had authority to represent or bind Goway. 6. He noted that the applicants' material contained correspondence which appeared to be from Ms Lisa Comito to Mr Hallifax and he observed that Ms Comito was a former employee of Goway but she was never authorised to offer or sell alleged travel packages. It was never part of her employment to offer packages for travel. He observed that the email address dhallifax@live.com.au does not belong to Goway and Goway did not and does not have access to that email account. 7. Paragraphs 15 – 27 of Mr Forno's statement addressed each of the trips undertaken by Mr Baum and his wife between July 2016 and February 2018. As the applicant has conceded this travel and its costs it is not necessary to address that part of the evidence in any further detail. 8. Mr Forno noted further that, based on a review of Goway's books and records, the company had no independent contract with Mr Baum, and he appeared to be copied into emails between Mr Hallifax and Mr Toovey. Mr Forno referred to the total benefits which in his statement were $70,915.83 but which he has amended to the figure of $66,160.05 in relation to the various travel packages referred to in the chronology marked as Annexure "L" to his statement. 9. In cross-examination Mr Forno noted that there was no department described as the Staff Travel Department nor was there an appointed Staff Travel Manager for Goway in Australia. He pointed out that Goway was generally involved in inbound travel and a very small proportion of outgoing travel was handled by the company. He noted that from his enquiries Ms Lisa Comito was the person responsible for dealing with credit card payments. Decision 1. In matter No. 18/50673 the applicant claims a return of a sum of $5600.00 in respect of a flight package allegedly purchased from the respondent o 17 November 2015. He claimed that the package entitled him to two Business Class flights to the United Kingdom or Europe together with 35 days of accommodation to be used over a five year period from July 2016. 2. In relation to matter No.GEN18/50688 the applicant claims a sum of $13,600.00 based upon a purchase in December 2015 of two five year Platinum Passes to commence from 1 September 2016. He claims that the two Platinum Passes entitle him to six domestic trips and with that seven days accommodation in any one location up to a total of 60 days per year. In addition he claims that he was entitled to four international trips per year including four in internal flights and 60 days of car hire together 4.5 star accommodation. 3. In relation to each of these passes Mr Baum claims that some problems occurred from about May 2017 but the use of the Travel Passes was stopped in May 2018 and he accordingly claims a sum of $13,600.00 from the respondent on the basis that it had failed to deliver the full package. 4. The email chain has been set out above but in substance Mr Baum was introduced to the Travel Pass concept through a friend, Bruce Toovey who booked the original travel from David Hallifax. 5. Mr Baum gave his credit card details to Mr Toovey who in turn passed them on to Mr Hallifax authorising a charge of $5,600.00 on 17 November 2015 for the purchase of two Business Class flights, with accommodation packages of 35 days on each occasion. Although there is evidence that the sum of $5600.00 was charged to the respondent no receipt was ever provided nor was there any documentation from the respondent detailing the trip or trips purchased or any accommodation or hire car details. 6. The applicant conceded that between 28 July 2016 and mid to late August 2016 he and his wife travelled from Sydney to Dublin, London, Rome and Florence and Sorrento and incurred travel costs to the respondent of $19,412.50. 7. On 26 December 2015 the applicant was copied into an email from David Hallifax via Bruce Toovey offering a five year Platinum Travel Pass at a cost of $8500.00 each or $17,000.00 for two. The applicant paid the sum of $17,000.00 to the respondent by credit card on 29 January 2016. The first trip was booked through the Platinum Card on 19 September 2016 through Bruce Toovey who again booked via David Hallifax. This trip was for travel commencing in November 2016. The applicant concedes that a further $46,747.55 worth of travel and accommodation was paid out by the respondent on his behalf and on behalf of his wife, but which included travel apparently arranged for friends in October 2017. The total of all travel and accommodation expenses paid out by the respondent on cards issued on favour of the applicant was a sum of $66, 160.05. 8. Mr Baum conceded that he did not receive any card or other written document acknowledging the terms or conditions of either the initial card or the later Platinum Pass and nothing dealing with those matters was ever forwarded to him in a document which identified the named respondent Goway Pty Ltd. All travel was booked through either Bruce Toovey or David Hallifax and there were no references in email communications to the respondent Goway Pty Ltd. 9. The communications through Mr Hallifax were from an email address @live.com.au and in later times any communications with Ms Lisa Comito was not through a Goway address but rather through the email address lisamareec75@hotmail.com. 10. A document which purported to identify the terms and conditions for the Travel Passes did not contain any reference to the respondent nor was it provided from an email address from within the respondent. There was nothing in that material to suggest it had emanated from Goway Pty Ltd or even from Ms Comito. It is not suggested by the applicant that Mr Bruce Toovey or Mr David Hallifax were employees or agents of the respondent Goway Travel. The documents purporting to provide information concerning the travel packages did not have any identification of sender but simply commenced with the words "Hi Staff" and concluded with the notation "Manager Staff Travel". The Tribunal is satisfied from the evidence of Mr Forno that no office designated "Manager Staff Travel" exists in Goway Australia and the nature of such documents should arouse some concerns or suspicions in a third party as to why there was no reference to the identity of the respondent with whom he claimed to have contracted. Jurisdiction 1. The applicant is a "consumer" within the meaning of section 79D of the Fair Trading Act 1987 and the claim is a consumer claim with section 79E of the Fair Trading Act 1987. The proceedings have been commenced within the three year limitation period from the date of the cause of action pursuant to section 79L of the Fair Trading Act 1987 and the Tribunal has jurisdiction in the matter. The Existence of a Contract 1. In relation to matter GEN18/50673 the claimed relationship between the applicant and the respondent only appears to arise from a trail of emails involving the applicant, Mr Bruce Toovey and Mr David Hallifax. 2. In relation to matter GEN18/50688 the purchase of the five year Platinum Passes again arose from communications, firstly by Mr Hallifax to Mr Toovey and thereafter by the applicant to Mr Hallifax. There is no indication in the evidence that Ms Lisa Comito took any part in the exchange of emails in November and December 2015 when it is alleged that these agreements were made between the parties. Reference is made, in relation to the first contract, to passing information on to Lisa but she is not otherwise identified by her full name or her relationship to the respondent in the early emails other than the emails between Mr Hallifax and Mr Toovey. 3. As it would appear that Lisa Comito was in fact employed by the respondent it is necessary to consider whether, on the whole of the evidence, the Tribunal should be satisfied that the applicant has established that she has actual or ostensible authority to contract with the applicant in relation to the Travel Passes. 4. The applicant bears the onus of establishing both the existence of the agency and the authority of the agent to effect the act giving rise to the entitlement claimed (see Lysaght Bros & Co Ltd v Falk [1905] 2CLR 421 at 427 per Griffith CJ). 5. The principle of ostensible authority has been set out as follows in Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd (1964) 2 QB 480, at 503 per Diplock LJ: 'An 'apparent' or 'ostensible' authority … is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the 'apparent' authority, so as to render the principal liable to perform any obligations imposed upon him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract.' 1. The question of ostensible authority comes into play as a separate issue when the authority of an agent appears to have exceeded his or her actual authority. As explained by Lord Atkin, ostensible authority appears to be excluded when the party asserting it cannot show any appearance of authority, other than the actual authority, was ever displayed to him by the principal (see Egyptian International Foreign Trade Co v Soplex Wholesale Supplies Ltd ("the Raffaella") [1985] 2 Lloyd's Rep 36 at 43). 2. An agent cannot give an appearance of authority by means of conduct itself which is unauthorised, since in that event, the principal will not have held the agent out to have the apparent authority that the third party seeks to invoke against the principal (see Fry v Smellie [2012] 3KB 282 at 293 per Vaughan Williams LJ.) 3. The people with whom the applicant was dealing were not agents or employees of the respondent and to the extent that it may be contended that Lisa Comito was an agent of the respondent there is nothing in the material provided to the Tribunal at the time when the agreement was allegedly formed to establish that Ms Comito had the authority to issue Travel Passes to persons who were not staff or friends or family of staff. 4. The applicant must prove not only that he in fact relied upon the principal's representation, but also that his reliance was reasonable: see Hoare v McCarthy (1916) 22 CLR 296, at 305-306; Reckitt v Barnett, Pembroke and Slater Ltd [1929] AC 176, at 182. This requirement was discussed in Egyptian International Foreign Trade Co v Soplex Wholesale Supplies Ltd (The 'Raffaella') [1985] 2 Lloyd's Rep 36 at 41: It is important to bear in mind that the doctrine of holding out is a form of estoppel. As such, the starting point is that the principal must be shown to have made a representation, which the third party could and did reasonably rely on, that the agent had the necessary authority. The relevant enquiry, therefore, in all cases is whether the acts of the principal constitute a representation that the agent had a particular authority and were reasonably so understood by the third party.' 1. Similarly, in Rolled Steel Ltd v British Steel Corpn (1986) Ch 246 it was said, at 284: '… even if persons contracting with a company do not have actual knowledge that an irregularity has occurred, they will be precluded from relying on the rule if the circumstances were such as to put them on inquiry which they failed duly to make.' 1. The applicant must prove actual reliance on a relevant representation of authority. The respondent submitted that the applicant had not established that the applicants' reliance was reasonable in all of the circumstances because the travel services provided at the prices that were paid, were simply "too good to be true". 2. It is a matter of significance that Ms Lisa Comito, when communicating at any time with the applicant, used a hotmail address rather than an email address associated with the respondent company by whom she was, at that time, employed. 3. If it is alleged that Lisa Comito was responsible for producing the staff travel notifications then it would be reasonable to expect that a party seeking to rely on those notifications would be somewhat concerned or alarmed at the absence of any email address or other material which indicated that the documents prepared had emanated from the respondent. Her failure to provide material in a form which could be clearly identified as emanating from the respondent reduces any inference that she may have had ostensible authority. 4. In the absence of evidence that the negotiations giving rise to the contract were conducted by persons who had actual or ostensible authority it is clear that no contract was formed. As a basic proposition, Cheshire and Fifoot's Law of Contract makes it abundantly clear that the major and essential elements for the formation of a contract are identified as 1. Agreement (offer and acceptance); 2. Consideration; 3. Intention to create legal relations; and 4. Certainty of terms. 1. In the present cases there is evidence that the consideration, namely, a sum of $5,600 in the first instance and a sum of $17,000.00 in the second instance was paid to the respondent but there is no evidence that the respondent agreed to provide the products or services claimed in exchange for those sums so that no agreement could possibly arise. 2. Mr Forno in his evidence claimed that the alleged Travel Packages are not and were never products of Goway and that they are fictitious packages. This assertion is supported by the fact that no documentary evidence of these packages was ever produced or provided by the respondent to the applicant. 3. The applicant has accepted that as a result of his total outlay on packages with the respondent he has received benefits on terms of travel, accommodation and car hire totalling $66,160.05 over a period between July 2016 and February 2018. Mr Forno in his statement dated 1 February 2019 described the alleged Travel Packages as "too good to be true" and observed that the applicant ought to have been put on due enquiry in relating to the legitimacy of the alleged Travel Packages. Mr Baum in cross-examination by counsel for the respondent described the packages as "very good value" and he stated that he believed that he was dealing with Goway because of the connection between Mr Hallifax, who was a friend of Mr Toovey, with Lisa Comito, who was in some way related to Mr Hallifax. 4. Mr Baum claimed that he had purchased a further package for $5,600.00 which was not the subject of the present proceedings. He claimed that the further package had not been used and that he was intending to seek a refund of that package because it had never been used. He conceded that there was no evidence in the material provided by him or by the respondent that determined whether any value had been obtained from the further package. The Applicant's Present Claims 1. To the extent that it has been determined that no valid contract was entered into between the parties it is appropriate to consider whether the applicant is entitled to recover any compensation under either of the claims in the present circumstances. 2. Section 79U of the Fair Trading Act 1987 details matters which are to be considered by the Tribunal when making orders and the section, so far as it is relevant to the present proceedings, provides matters to be considered by Tribunal when making orders 1. When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim. 1. In matter GEN18/50673 the applicant has claimed a full refund of all monies paid, namely a sum of $5,600.00 presumably on the basis that this package was never used. In the related matter, GEN18/50688 he has claimed a sum of $13,600.00 for a failure to deliver a full package for which he had aid a sum of $17,000.00. 2. Having determined that there is no contract between the applicants on the one side and on the respondent company on the other it is appropriate to have regard to the amount paid in each instance and the nature and extent of benefits included in the Travel Passes which substantially exceeded all reasonable expectation of what could be provided for that price. The respondents have submitted that the applicant should in fact have been aware or alerted to the questionable validity of the proposal and the fact that it could not have been made with the authority of the company as it was an offer to provide a package of services which significantly exceeded any amount paid by the applicant. 3. In Steve Miller and Anor v Grosvenor Constructions Pty Ltd [2017] NSWCATCD 42 Senior Member Goldstein applied s79U of the Fir Trading Act 1987 and assessed nominal damages of $10.00 to compensate an owner for the cost of installing a replacement door where the owner had already retained a benefit of $1652.00 from the contract. He determined that the resultant outcome would be fair and equitable to all parties. 4. In Irving v D'Michelle t/as Westside Customs and Mechanical [2015] NSWCATCD 152 Member Sarginson applied the provisions of s79U to substantially reduce the quantum of damages claimed by an applicant for repairs and/or reconditioning of an engine noting that the Tribunal did not accept it was appropriate or fair and equitable to award the costs of a fully reconditioned motor as set out in a quote which was before the Tribunal in that case. 5. The operation of section 79U was again considered by the Tribunal Appeal Panel in Curtis v Potter & Co Pty Ltd t/as The African Safari Co.[2016] NSWCATAP 196 6. The Appeal Panel observed that where a Tribunal makes an order in favour of a claimant in a consumer claim for which the Tribunal has jurisdiction under the Fair Trading Act, regard must be had to s79U of the Fair Trading Act. It was noted that the nature and extent of such power was considered by Hope JA in State Rail Authority of New South Wales v Consumer Claims Tribunal [1988] 14 NSWLR 473 in the context at that time of the provisions of s23 (2) of the previously repealed Consumer Claims Tribunal Act 1974 (NSW) which then set out the object of dealing with a claim by making such an order as in the opinion of the Tribunal was fair and equitable to all parties to the proceedings before it. His Honour noted that where there is ….. a claim or obligation to be determined by applying the general law is only where the Tribunal proposes to make an order in favour of the claimant that in some case the form of order in his favour is to be determined according to the opinion of the Tribunal as to what is fair and equitable to all parties. His Honour observed further that the Fair Trading Act was not confined to particular types of orders that might be made but the Fair Trading Act does not replace the requirement for claims to be determined in accordance with the general law. 1. Applying these principles it is necessary to have full regard to the fact the applicant has presently received a total benefit of some $66,106.05 representing $19,412.50 which could only have been provided under the first Pass which allowed travel between 28 July 2016 and 12 August 2016 and a further sum of $46,747.55 which related to travel undertaken on a Pass or Passes available after 25 November 2016 and up to the date when the respondent indicated that no further travel would be permitted. 2. On any view of the evidence the applicant has obtained a substantial benefit from the respondent and there is nothing to suggest that any compensation should be awarded in these actions or potentially in any action he make to bring in relation a remaining Pass by reason of the operation of s 79U of the Fair Trading Act 1987. ********** 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: 10 April 2019