Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733

Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733

Scenic breached the consumer guarantees under ss 60, 61(1), and 61(2) of the ACL by not providing services reasonably fit for purpose, of the required nature and quality to achieve the consumer’s expected result, and without due care and skill, as Scenic did not accurately inform passengers of likely disruptions nor offer alternatives or cancellation options despite foreknowledge of extensive cruise disruptions. The breaches constituted a major failure under s 268 ACL. Compensation is assessed as the reduction in value of the services actually provided from the price paid, and the plaintiff is also entitled to damages for distress and disappointment since those losses were outside the...

Parties
Plaintiff: David Moore; Defendant: Scenic Tours Pty Limited
Jurisdiction
Australia
Judgment Date
31 August 2017
Procedural Posture
Representative Proceeding / Post Trial Judgment
Outcome
Judgment for the plaintiff in part
Legal Topics
Consumer Guarantees, Damages for Distress and Disappointment, Assessment of Compensation, Interpretation of Services Under ACL, Major Failure Under ACL, Statutory Interpretation, Limitation of Liability, Extraterritoriality, Restitution for Failure of Consideration
Consumer Law Contract Law Tort Law Restitution Consumer Guarantees Damages for Distress and Disappointment Assessment of Compensation Interpretation of Services Under ACL +5 more

Case Brief

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Parties

David Moore

Plaintiff

Scenic Tours Pty Limited

Defendant

Procedural Posture

Representative Proceeding / Post Trial Judgment

Legal Issues

  1. 1 Whether Scenic breached consumer guarantees under ss 60, 61(1), and 61(2) of the Australian Consumer Law by failing to provide the promised luxury river cruise services
  2. 2 How 'services' should be characterized under the ACL and under the contract in the context of substantially disrupted cruises
  3. 3 Whether breaches constituted 'major failure' under s 268 ACL

Ratio Decidendi

Scenic breached the consumer guarantees under ss 60, 61(1), and 61(2) of the ACL by not providing services reasonably fit for purpose, of the required nature and quality to achieve the consumer’s expected result, and without due care and skill, as Scenic did not accurately inform passengers of likely disruptions nor offer alternatives or cancellation options despite foreknowledge of extensive cruise disruptions. The breaches constituted a major failure under s 268 ACL. Compensation is assessed as the reduction in value of the services actually provided from the price paid, and the plaintiff is also entitled to damages for distress and disappointment since those losses were outside the...

Court Disposition

Judgment for the plaintiff in part

Orders

  • Judgment for the plaintiff against the defendant in the amount of $12,990 plus interest in accordance with s 100 of the Civil Procedure Act 2005, calculated from 3 June 2013 (on $10,990) and from 17 June 2013 (on $2,000).
  • Defendant to pay the plaintiff’s costs of the claim on a party and party basis forthwith.