Scenic Tours Pty Ltd v Moore [2018] NSWCA 238

Scenic Tours Pty Ltd v Moore [2018] NSWCA 238

Compensation for reduction in value under s 267(3)(b) ACL must be assessed objectively by market value, not subjectively. Damages for disappointment and distress are precluded, as s 275 ACL makes s 16 Civil Liability Act (NSW) apply, and the threshold for non-economic loss was not met. Scenic's contractual limitations did not restrict the scope of Consumer Guarantees; liability depended on reasonable consumer expectations derived from supplier's representations.

Parties
Appellant: Scenic Tours Pty Ltd; Respondent: David Moore
Jurisdiction
Australia
Judgment Date
24 October 2018
Procedural Posture
Representative Proceedings (class Action) / Court of Appeal, Leave to Appeal and Partial Appeal Allowed
Outcome
Appeal allowed in part; leave to appeal granted.
Legal Topics
Australian Consumer Law (acl), Consumer Guarantees, Damages for Disappointment and Distress, Representative Proceedings, Statutory Interpretation, Jurisdiction
Consumer Protection Contract Law Civil Procedure Australian Consumer Law (acl) Consumer Guarantees Damages for Disappointment and Distress Representative Proceedings Statutory Interpretation +1 more

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Parties

Scenic Tours Pty Ltd

Appellant

David Moore

Respondent

Procedural Posture

Representative Proceedings (class Action) / Court of Appeal, Leave to Appeal and Partial Appeal Allowed

Legal Issues

  1. 1 Were the services supplied by Scenic co-extensive with contractual obligations or defined by reasonable consumer expectations?
  2. 2 Did Scenic breach the Consumer Guarantees in the ACL (ss 60, 61)?
  3. 3 Can damages for disappointment and distress be claimed given s 16 Civil Liability Act and s 275 ACL?

Ratio Decidendi

Compensation for reduction in value under s 267(3)(b) ACL must be assessed objectively by market value, not subjectively. Damages for disappointment and distress are precluded, as s 275 ACL makes s 16 Civil Liability Act (NSW) apply, and the threshold for non-economic loss was not met. Scenic's contractual limitations did not restrict the scope of Consumer Guarantees; liability depended on reasonable consumer expectations derived from supplier's representations.

Court Disposition

Appeal allowed in part; leave to appeal granted.

Orders

  • Set aside Order 1 made by the primary Judge on 15 November 2017.
  • Mr Moore's claim for damages for disappointment and distress under s 267(4) ACL dismissed.