HUDSON V BIG UPPETITE PTY LIMITED [2023] NSWCATCD 179

HUDSON V BIG UPPETITE PTY LIMITED [2023] NSWCATCD 179

The Tribunal found that there was no certain or formal agreement that the website would be live within 8 weeks; any such timeframe was an aim rather than a contractual term, and a number of delays were caused by the applicant. The applicant did not provide expert evidence establishing that the website services were not performed with due care and skill or below industry standard, so those claims were dismissed. However, the respondent terminated the contract and clause 26(a), which allowed the respondent to retain all fees paid without itemising completed work, created a significant imbalance, was not reasonably necessary to protect the respondent's legitimate interests, would cause...

Jurisdiction
Australia
Judgment Date
06 November 2023
Procedural Posture
Consumer Claim for Breach of Contract and Alleged Failure to Provide Services With Due Care and Skill / Principal Judgment After Hearing
Outcome
The applicant succeeded in part; the respondent was ordered to pay $3,000.00 and all other claims were dismissed.
Legal Topics
['consumer Claim' 'supply of Services' 'due Care and Skill' 'unfair Contract Term' 'refund for Incomplete Services' 'website Development Services']
['consumer Law' 'contract Law'] ['consumer Claim' 'supply of Services' 'due Care and Skill' 'unfair Contract Term' 'refund for Incomplete Services' 'website Development Services']

Case Brief

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Procedural Posture

Consumer Claim for Breach of Contract and Alleged Failure to Provide Services With Due Care and Skill / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction under Part 6A of the Fair Trading Act, 1987 to determine the consumer claim.' 'Whether the respondent breached the contract by failing to provide the Digital Accelerator Program or website within an agreed timeframe.' 'Whether the respondent failed to provide services with due care and skill under s 60 of the Australian Consumer Law (NSW).' 'Whether clause 26(a) of the contract, providing that fees paid would not be refunded on termination by the respondent, was unfair under s 23 of the Australian Consumer Law (NSW).' 'What amount, if any, should be refunded for work not completed when the contract was terminated.']

Ratio Decidendi

The Tribunal found that there was no certain or formal agreement that the website would be live within 8 weeks; any such timeframe was an aim rather than a contractual term, and a number of delays were caused by the applicant. The applicant did not provide expert evidence establishing that the website services were not performed with due care and skill or below industry standard, so those claims were dismissed. However, the respondent terminated the contract and clause 26(a), which allowed the respondent to retain all fees paid without itemising completed work, created a significant imbalance, was not reasonably necessary to protect the respondent's legitimate interests, would cause...

Court Disposition

The applicant succeeded in part; the respondent was ordered to pay $3,000.00 and all other claims were dismissed.

Orders

  • ['The respondent, Big Uppetite Pty Limited, is to pay the applicant, Sophia Hudson, the amount of $3,000.00 on or before 20 November 2023.' 'All other claims are dismissed.']