Blue Bella Pty Ltd t/as Quantum Change Seminars v Gibson [2016] NSWCATAP 13

Blue Bella Pty Ltd t/as Quantum Change Seminars v Gibson [2016] NSWCATAP 13

The contract required the appellant to provide the Egypt tour in December 2014 and did not authorise unilateral postponement for 12 months. The tour did not proceed in December 2014, which amounted to cancellation or breach, and clause 8 in any event required a refund on cancellation. The Tribunal’s refund order was therefore correct. There was also no basis to disturb the Tribunal’s finding that the respondent was not bound by any alleged agreement to attend in December 2015, because the evidence was incomplete on appeal and no enforceable variation supported by consideration was shown. Leave to appeal was refused and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
18 January 2016
Procedural Posture
Consumer Claim Appeal / Appeal Panel
Outcome
Leave to appeal refused; appeal otherwise dismissed.
Legal Topics
['statutory Guarantee for Supply of Services Within a Reasonable Time' 'construction of Contract Terms Permitting Change or Cancellation of Event Dates' 'refund Following Cancellation or Non Supply of Tour Services' 'leave to Appeal From Consumer and Commercial Division Decision' 'contract Variation and Consideration']
['consumer Law' 'contract Law' 'civil Procedure'] ['statutory Guarantee for Supply of Services Within a Reasonable Time' 'construction of Contract Terms Permitting Change or Cancellation of Event Dates' 'refund Following Cancellation or Non Supply of Tour Services' 'leave to Appeal From Consumer and Commercial Division Decision' 'contract Variation and Consideration']

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Procedural Posture

Consumer Claim Appeal / Appeal Panel

Legal Issues

  1. 1 ['Whether the appellant was entitled under the contract to postpone the Egypt tour for 12 months from December 2014 to December 2015.' 'Whether the appellant breached the contract or s 62 of the Australian Consumer Law (NSW) by failing to provide the tour in December 2014 or within a reasonable time.' 'Whether the parties were bound by a variation of the contract for supply of the tour in December 2015 or later.' 'Whether the respondent was entitled to a refund of the amount paid for the 2014 tour.']

Ratio Decidendi

The contract required the appellant to provide the Egypt tour in December 2014 and did not authorise unilateral postponement for 12 months. The tour did not proceed in December 2014, which amounted to cancellation or breach, and clause 8 in any event required a refund on cancellation. The Tribunal’s refund order was therefore correct. There was also no basis to disturb the Tribunal’s finding that the respondent was not bound by any alleged agreement to attend in December 2015, because the evidence was incomplete on appeal and no enforceable variation supported by consideration was shown. Leave to appeal was refused and the appeal was dismissed.

Court Disposition

Leave to appeal refused; appeal otherwise dismissed.

Orders

  • ['Leave to appeal refused.' 'The appeal is otherwise dismissed.']