What is the practical effect of striking out the no refund term? In the Court struck out the no refund term and left the rest of the contract Ferme standing. The applicants were therefore able to recover the fares they paid on the basis that amount paid was for a consideration, that is the provision of a cruise, that had wholly failed. In deciding to order a refund of the fares the Court in followed the Ferme decision of the High Court in (1993) 176 Baltic Shipping Company v Dillon CLR 344: an innocent party cannot recover that money unless there has been a total failure of consideration... If the party part of the receives ‘substantial benefit expected under the contract’ there will not be a total failure of consideration I find that in the circumstances this case, unlike there has not been a Ferme, total failure of consideration because Ms Qamaruddin paid the reservation fee in return for the reservation of the block. The respondent reserved the block as it was contractually obliged to. Accordingly, severance of the no refund term from the contract does not entitle Ms Qamaruddin to a refund of the reservation fee. Other actions under the ACL Ms evidence and submissions about Mr conduct on Qamaruddin’s Russell’s behalf of the respondent raise the ACL prohibitions on unconscionable conduct; and misleading or deceptive conduct. Liability of respondent for acts of its employees Section 139B of the 2010 provides in relation to Competition and Consumer Act the conduct of directors, employees or agents of bodies corporate: (1) ... (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or (b) by any other person:
What is the practical effect of striking out the no refund term? In Ferme the Court struck out the no refund term and left the rest of the contract standing. The applicants were therefore able to recover the fares they paid on the basis that amount paid was for a consideration, that is the provision of a cruise, that had wholly failed. In deciding to order a refund of the fares the Court in Ferme followed the decision of the High Court in Baltic Shipping Company v Dillon (1993) 176 CLR 344: an innocent party cannot recover that money unless there has been a total failure of consideration... If the party receives ‘substantial part of the benefit expected under the contract’ there will not be a total failure of consideration I find that in the circumstances this case, unlike Ferme, there has not been a total failure of consideration because Ms Qamaruddin paid the reservation fee in return for the reservation of the block. The respondent reserved the block as it was contractually obliged to. Accordingly, severance of the no refund term from the contract does not entitle Ms Qamaruddin to a refund of the reservation fee. Other actions under the ACL Ms Qamaruddin’s evidence and submissions about Mr Russell’s conduct on behalf of the respondent raise the ACL prohibitions on unconscionable conduct; and misleading or deceptive conduct. Liability of respondent for acts of its employees Section 139B of the Competition and Consumer Act 2010 provides in relation to the conduct of directors, employees or agents of bodies corporate: (1) ... (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of the actual or apparent authority of the director, employee or agent; or (b) by any other person:
QAMARUDDIN-v-KOLAK-LIVING-PTY-LIMITED-Civil-Dispute-2017-ACAT-45.docx