Ford vTripADeal Pty Ltd [2021] NSWCATCD 57

Ford vTripADeal Pty Ltd [2021] NSWCATCD 57

The application was dismissed because the Tribunal found that the COVID-19 pandemic and government responses were force majeure or events beyond the respondent's control within clauses 34 and 35 of the contract; the respondent was entitled to alter and then cancel the tour and had made commercially reasonable efforts to mitigate the adverse effects. The Tribunal also found no evidence that the respondent knew before departure that Rome or Italy would soon be in lockdown or that the cruise would not proceed, no evidence that it was unsafe for the applicants to depart Australia when they did, no misleading conduct in relation to return flights, no negligence, no breach of section 60 of the...

Jurisdiction
Australia
Judgment Date
14 January 2021
Procedural Posture
Consumer Claim / Principal Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'consumer Guarantees' 'due Care and Skill' 'force Majeure' 'travel Cancellation' 'covid 19 Pandemic']
['consumer Law' 'contract Law' 'negligence' 'travel Services'] ['misleading or Deceptive Conduct' 'consumer Guarantees' 'due Care and Skill' 'force Majeure' 'travel Cancellation' 'covid 19 Pandemic']

Case Brief

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Procedural Posture

Consumer Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondent breached the contract by altering and then cancelling the applicants' tour after COVID-19 restrictions affected the itinerary." "Whether the COVID-19 pandemic and government responses fell within the force majeure or events beyond control clauses in the parties' contract." 'Whether the respondent acted negligently by not cancelling the tour before the applicants departed Australia.' 'Whether the respondent engaged in false or misleading conduct contrary to section 18 of the Australian Consumer Law (NSW).' 'Whether the respondent failed to comply with the guarantee in section 60 of the Australian Consumer Law (NSW) that services be provided with due care and skill.']

Ratio Decidendi

The application was dismissed because the Tribunal found that the COVID-19 pandemic and government responses were force majeure or events beyond the respondent's control within clauses 34 and 35 of the contract; the respondent was entitled to alter and then cancel the tour and had made commercially reasonable efforts to mitigate the adverse effects. The Tribunal also found no evidence that the respondent knew before departure that Rome or Italy would soon be in lockdown or that the cruise would not proceed, no evidence that it was unsafe for the applicants to depart Australia when they did, no misleading conduct in relation to return flights, no negligence, no breach of section 60 of the...

Court Disposition

Application dismissed.

Orders

  • ['Leave is granted for the applicants to amend their claim to seek compensation of $11,160 and costs of $1600.' 'The application is dismissed.']