RMIT Classification: Trusted

RMIT
UNIVERSITY
LAW2447 ASSESSMENT TASK 3

INSTRUCTIONS

l. The deadline, referencmg guide, marking rubric, and other detailed instructions for this assessment can
be found on Canvas, under the Assessment Task 3 page.

2. This assessment contains two questions (Problem Solving Question & Case Note Question). You
must complete all of these questions.

3. The recommended length for the Problem Solving Question is 1300 words (+-10%); and the
recommended length for the Case Note Question is 700 words (+-10%). The combined length of two
questions is 2000 words (+-10%).

The examiner will stop reading once reaching this word limit. Issues covered in the excessive
part(s) will not be counted and will be marked as "missing". You are going to lose credit for these
missing issues. Thus, you must write precisely and succmctly to cover all relevant legal issues
within the word limit.

4. This is an assessment, and you must work independently in completing it. You must not send a
conespondence to the lecturers directly or impliedly seeking a sample answer of the assessment
question or asking for a review of a draft. Lecturers are not allowed to discuss the assessment
questions with students while the assessment is still going on.

5. Please save your assignment as a DOC or DOCX file and submit it to Canvas. PDF files are not
accepted. Please do not upload a PDF file to Canvas.

PROBLEM SOLVING QUESTION

(30 marks, recommended length: 1300 words, +-10%)

On 2 May 2019, one day after signing a lease with Phuong Dong Company for Anh Duong Stereo's new
office, Mr. Cong, the president ofAnh Duong Stereo, called the office manager, Mr. Huy, and said "I've
rented a great new office for Anh Duong Stereo. Please go buy some new recording equipment so we can
record some CDs".

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Mr Huy responded that "I do not think I have to do that. don't you ask other employees to go and buy
them ?' Mr. Cong said "well, as an office manager and as specified in the employment contract, I believe you
should be responsible for this issue". Nevertheless, Mr Cong continued and told Mr. Huy that "ifyou go and
buy the equipment, I will pay you additional $500 this month".

The next moming, 3 May 2019, Mr. Huy went to a music equipment store called Tien Dat Equipment and
told the salesperson that Anh Duong Stereo needed to buy nine microphones, two tumtables, and a set of
speakers. The salesperson showed Mr. Huy the samples of the equipment that Anh Duong Stereo needed and
said that Tien Dat Equipment could deliver all of the equipment to Anh Duong Stereo's office anytime that
Anh Duong Stereo wanted.

Mr. Huy said "I like the tumtables and the speakers, but I'm not sure about the microphones. Can you tell me
more about them and especially about how safe they are?" The salesperson replied "Our microphones are
manufactured by Sony Vietnam. They are the safest microphones in the world. They are made out of rubber
and plastic and will never shock you. Tien Dat Equipment has been selling them for five years and no
customer has ever had any problem with them". The salesperson also said that "if you buy the tumtables, the
speakers, and the microphones from us, we will give you a free 21 -inch Sony TV".

The salesperson then showed Mr. Huy the box that the microphones came in. The box said "Sony Mics will
never shock you! " The box also had a statement in small prints on the back which said "If you use Sony
Mics within three meters of any other electronic devices, you may be shocked and badly Injured. The seller
and manufacturer are not responsible for injunes and damage that are caused m this manner".

Mr. Huy was very interested in buymg the equipment from Tien Dat Equipment. However, he did not sign
the contract straight away. He told the salesperson that he needed some more time to think and would come
back after five days to sign the contract.

When Mr. Huy left the office, the salesperson suddenly realized that he forgot to infonn Mr. Huy some of the
company's policies. Therefore, he immediately emailed Mr. Huy and stated in the email that "the seller will
not be responsible for any damage or whatsoever caused by the equipment under both common law and
statutory law". Mr. Huy's computer was affected by a vilus and thus he did not check his emails.

Five days after his fn•st visit, Mr. Huy went back to the store to sign the contract. As an alcoholic person, he
dropped by a supermarket and bought 10 bottles of beer. He finished all of these bottles while driving to Tien
Dat Equipment's store. Wmen Mr. Huy got to the store, he could not park his car properly and the
salesperson had to drive the car into the car park for him. The salesperson kept asking "Are you alright?" but
Mr. Huy did not respond.

Mr. Huy then went to the office and signed a basic contract to buy the equipment from Tien Dat Equipment.
The contract was prepared by Tien Dat Equipment and it mentioned the total price ($40,001), parties' names,
and the fees for delivery and installation. The last footnote in the contract (i.e. footnote number 5) contained

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a statement which read as follows: "the seller will not be responsible for any damage or Injuries caused by a
misuse of the equipment". Mr. Huy signed the contract without reading any footnotes; and thus, he was not
aware of the statement.

Later that day, when Tien Dat Equipment delivered and installed the equipment at Anh Duong Stereo's new
office, Mr. Huy noticed that the equipment was not the same as the equipment he had seen at the Tien Dat
Equipment store. Mr. Huy took a small electronic recording device called a Dictaphone that he only used for
business purposes out of his coat pocket and recorded the following message: "Remember to call the
salesperson at Tien Dat Equipment and tell him that these microphones are a different model, these tumtables
are a different size, and these speakers are a different color".

Mr. Huy put the Dictaphone back into his coat pocket and picked up one of the new microphones to see how
it sounded. »,men he did so he received a senous electnc shock. The shock caused Mr. Huy to pass out. He
was taken to the hospital where he stayed for three days. His medical bills at the hospital were $6,000. The
electric shock also destroyed his Dictaphone, for which he had paid $400.

It tuned out that Tien Dat Equipment's microphones were not made by Sony Vietnam but by a Malaysian
company, namely, Techtronic Industries. The microphones were also made out of metal rather than rubber
and plastic.

Mr. Huy wanted to retum the microphones and required the store to compensate him for his loss, but the
store denied its liability.

Mr. Cong also refused to pay Mr. Huy the additional $500.

The wntten agreement between Anh Duong Stereo and Phuong Dong Company stipulated that the length of
the contract was one year. The rent was $ 1000 a month. However, it was agreed in the contract that Anh
Duong Stereo did not have to pay that amount of rental money because Anh Duong Stereo had provided
sounding equipment to Phuong Dong Company in five marketing events in January and February 2019 for
which Phuong Dong Company had not paid the service fees yet.

Phuong Dong Company wanted to get the office back Gust after one month from the time Anh Duong Stereo
moved in). Anh Duong Stereo refused to do so and argued that there was a binding contract between two
compames.

REQUIRED:

Discuss all relevant issues in relation to who can reasonably sue whom for what
under Common Law (not under the Australian Consumer Law), who can prevail,
and why?
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 RMIT Classification: Trusted

Do not discuss tort law.

Do not discuss the Australian Consumer Law.
CASE NOTE QUESTION
(20 marks, recommended length. 700 words, +- 10%)

Some commentators criticize that the case (judgment) below was wrongly decided. Others
disagree and think that it was convincingly decided. Please give your own opinion about the case
(whether it was convincingly decided by the judge or not).

In discussing the case, please follow the requirements and Instructions set out in the Case Note Guide &
Case Note Marking Rubric which can be found on Canvas.

Civil and Administrative Tribunal

New South Wales

Case Name: Nguyen and Sy v The Trustee for the Nero CKD Unit Trust t/as View by
Sydney

Medium Neutral Citation: [2017] NSWCATCD 98

Decision Date: 31 October 2017

Before/Judges:
G.J. Sarginson
Senior Member
Parties:
Anh-Lan Nguyen & Walter Sy v The Tmstee for the Nero CKD Unit Trust
t/as View by Sydney

Representation: Applicants/Plaintiffs: In person

Respondent/Defendant: Ms L Hobbs, Chief Executive Officer

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REASONS FOR DECISION

1 The dispute involves a wedding reception that occurred in Walsh Bay, Sydney at a venue overlooking
Sydney Harbour, on 15 January 2017. The applicants are the bride and groom. The respondent was the
orgamser of the wedding reception. Due to a water leak that occurred m the building in the penod prior

to the start of the wedding reception that contmued during the wedding reception, the applicants are
dissatisfied with services provided by the respondent.

2 Although Ms Hobbs (the Chief Executive Officer of the respondent) was listed as a separate
respondent to the proceedings, an ASIC business name search on the registered business name "View
by Sydney" (with whom the applicants contracted with) indicates that the conect legal entity of the
respondent is The Trustee for the Nero CKD Unit Trust t/as View by Sydney.

3 Proceedings were commenced m the Tribunal on 21 April 2017. The applicants seek damages of
$20,000.00, comprised of: (i) A full refund of the $13,043.00 they paid to the respondent for the cost of
the wedding reception; (ii) $400.00 for "overtime charges" of the wedding photographer; and (iii)
$6,557.00 for "emotional damage".

4 The matter was listed for a Group List and Conciliation hearing at the Tribunal on 9 May 2017. The
parties were unable to resolve the dispute, and the matter was set down for hearing with directions that
included the filing and serving of documentary evidence.

5 Prior to the hearing commencing on 11 July 2017, the Tribunal encouraged the parties to have further
discussions (not in the presence of the presiding Member). The parties had further discussions, but
were unable to resolve the dispute. The matter proceeded to hearing.
DOCUMENTS OF TI--IE APPLICANTS
6 The applicants' documents were as follows:

(a) Witness statement of Ms Roman (a wedding guest) dated 17 May 2017.

(b) Witness statement of Ms Ahn-Dao Nguyen (member of the bridal palty) dated 16 May
2017.

(c) Witness statement of Mr Ahn-Toan Nguyen (groomsman) dated 17 May 2017.

(d) Joint witness statement of Mr Ly Hak and Mr Raphael Dauzat (wedding guests) dated
17 May 2017. Mr Hak and Mr Dauzat attended the hearing, and were available for
cross examination.

Photographs of the wedding reception, including photographs taken by Mr Dauzat.

(t) The "run sheet" (i.e. schedule) of the wedding reception.

The seating plan for the reception.

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(h) A quotation of the respondent dated 30 September 2016, which included written terms
and conditions.

(i) Bank statements evidencing fimds paid to the respondent.

Details of the wedding photography with Mint Photography for the amount of
$1,700.00.

(k) A tax invoice from Mint Photography in the sum of $300.00 in respect of "additional hour
wedding photograph coverage" in the sum of $300.00 dated 27 January 2017.
(1) A tax invoice from Impression DJS Pty Ltd (the wedding DJ) dated 15 January 2017 in the
sum of $975.70.

(m) Bank statement evidencing payment to DJS Pty Ltd.

(n) Emails between the applicants and the respondent for the period between 26 October
2016 and 10 November 2016.
DOCUMENTS OF RESPONDENT

7 The respondent's documents were as follows:

(a) A chronology of events prepared by Ms Hobbs, with comments regarding the version
of events of the applicants.

(b) Photographs of the wedding reception, including photographs of the water Ingress and
sheets on the floor to absorb water.

(c) A written statement of Ms Bishop, event co-ordinator.

(d) The quotation for the wedding dated 30 September 2016, with attached tenns and
conditions.

A tax invoice of the respondent (undated) in the sum of $13 043.60.

(t) The mn sheet for the wedding. The run sheet had comments written on it regarding the
extension of time for canapés and drinks, and the tune at which linen sheets were
removed from the floor.

The wedding menu and beverage package.

(h) A letter from Mr Piper, building manager, of Manage Ment Pty Ltd (the building
manager of the building m which the wedding reception occurred).

(i) A "shift report" by Ms Fathi of the respondent dated 16 Janua1Y 2017 setting out her
version of what occurred at the wedding reception on 15 January 2017.

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An email of the respondent to its insurance broker dated 20 February 2017, and various
emails to its insurer.
(k) An email to NSW Fair Trading dated 21 April 2017 responding to the applicants'
complaint.

(1) Emails between the applicants and respondent for the period from 27 October 2016 to
17 January 2017.
EVIDENCE OF THE APPLICANTS

8 The applicants stated they had contracted with the respondent for the wedding reception on or about 30
September 2016. The applicants stated they had paid a total amount of $13,043,.60 to the respondent
for the wedding reception, including hire of the venue.

9 The wedding occurred at 4.30 pm, on 15 Janua1Y 2017, and guests were to an-ive at the wedding
reception from 6.00pm. However, at approximately 4.00 pm, the event manager Ms Faathi contacted
the groom and infonned him that there had been a water leak into the wedding reception venue from
the office of the tenant upstairs due to a burst water pipe. The event manager stated that tables had
been moved and sheets put down on the floor, but that water remained dripping from the ceiling. The
event manager stated that she was trymg to contact the building manager of the building so that the
water leak could be stopped.

10 As the venue could not be changed at short notice and the applicants had guests who had travelled
from overseas to attend the wedding, the decision was made to contmue With the wedding reception.
The bride was not told about what had happened until just prior to 6.00 pm, as the groom did not want
to upset her.

Il The applicants stated that guests were asked to walt outside on the balcony of the venue. Guests entered
the venue at approximately 8.00 pm, which was 2 hours after they were supposed to commence entry.
There was still some water dripping from the ceiling, and tables had been moved away from the area of
the leak. There were also tablecloths on the floor to absorb water, and a bucket to capture dripping
water. The events ofthe reception were pushed back 2 hours. Guests complained because they had been
waiting outside for an extended period and could not sit down.

12 The applicants stated that, despite the reception commencing 2 hours late, the guests were still asked to
leave at midnight. According to the applicants, it was only at approximately 10.30 pm that the water
leak stopped.

13 The applicants stated that the wedding photographer and music DJ had to stay beyond the time period
that had originally been booked. Further, guests did not have the opportunity to dance for as long as
they should have, due to the delay in staffing the reception.

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14 The applicants stated that they were very upset by the condition ofthe venue due to the water leak,
which had spoiled their enjoyment of the wedding. Many guests had complained to them about the
condition of the venue due to the water leak and the delay in commencing the reception. Due to the
delay, some guests had left early without dessert.

15 It is unnecessmy to set out m detail the contents of the witness statements of Ms Roman; Mr Nguyen
and Ms Nguyen, which support the applicants version of events, particularly that the reception started 2

hours late. Neither Ms Roman, Mr Nguyen nor Ms Nguyen were present to give evidence and be
questioned.

16 The witness statement of Mr Hak and Mr Dauzat stated that they had travelled from overseas for the
wedding. According to them, they had assisted in setting up the venue, and had witnessed water
leaking from different parts of the ceiling. They stated that guests had entered the venue at
approximately 8.00 pm, and that water was still dripping from the ceiling, but it was "much less" than
previously. Mr Hak and Mr Dauzat stated that the reception finished at 12.00 pm.

17 In cross examination, Mr Dauzat stated that the photographs in the applicants ' documents were taken
by him, and although the photographs did not have a time stamp on them, he had checked his phone to
verify when the photographs were taken.
EVIDENCE OF THE REPSONDENT
18 Ms Hobbs stated that the amount paid by the applicants to the respondent for the wedding reception
was $12,800.00, not $13,043.00.

19 Ms Hobbs stated that the respondent did not own the venue of the wedding reception. At
approximately
3.00 pm on 15 January 2017, Ms Fathi the wedding co-ordinator employed by the respondent, was
present at the venue setting up, when water started leaking from the ceiling. Archer Capital occupied
the premises upstairs. Ms Fathi contacted the strata building manager so that measures could be taken
to stop the leak.

20 The water leak continued. Ms Fathi infonned the bridal palty at approximately 4.00 pm. The leak
contmued. Ms Fathi re-arranged tables and changed the table cloths of the tables that were wet.
Tablecloths were also placed on the floor. The configuration of the room was changed to move tables
away from the water leak.

21 Guests were seated at approximately 7.30 pm, and the bride and groom entered the venue at
approximately 7.45 pm. The respondent disputed that the schedule of the wedding was 2 hours late,
and stated that it was approximately I hour late. According to Ms Hobbs and the written statement of
Ms Fathi, the applicants were offered an extension of the wedding of I hour, but declined.

22 Ms Hobbs stated that, after the wedding reception, the applicants sent an email on 17 Janumy 2017
thanking the respondent for the efforts of Ms Fathi. The applicants subsequently sought a refund.

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23 Ms Hobbs submitted that the applicants were not entitled to a refund because: (i) despite a small delay
and inconvemence, the respondent had fulfilled its obligations under the contract; (ii) it was not the
fault of the respondent that the water leak had occurred; and (iii) the tenns and conditions of the
contract contained a "force majeure" clause stating that neither party shall be liable for failure to
perfonn contractual obligations due to events including "flood".

24 In respect of the documentalY evidence ofthe respondent, the only document that it is necessa1Y to
refer to in detail is the letter of Mr Piper, building manager of Manage Ment Pty Ltd, which is undated.
The letter states that he was infonned of the water leak at approximately 3.20 pm on 15 January 2017,
and travelled from Cronulla to the venue. After an-ivmg, he made investigations to work out where the
water was coming from, and ascertained it was coming from the offices of Archer Capital on Level 2
of the building. Mr Piper eventually was able to contact Archer Capital, and after staff members of
Archer Capital arrived, he was let Into then premises. Mr Piper ascertained that the water leak was
coming from under a sink, and tumed off the water supply. He stated that the water leak was stopped at
approximately 7.30 pm, but he infonned the respondent that water was likely to continue to drip for a
period of time due to the build-up of water in the floor space above the ceiling.
JURISDICTION OF THE TRIBUNAL
25 The applicants fall within the definition of "consumer" under Section 79D of the Fair Trading Act 1987
('the FTA') and the claim is a "consumer claim" within the meaning of Section 79E of the FTA, as it
involves the provision of services in NSW, and proceedings have been commenced within the
limitation period m Section 79L of the FTA.

26 By reason of Sections 28 and 32 of the FTA, the Australian Consumer Law 2010 ('the ACL') is a law
of NSW that applies to the circumstances of this dispute.

27 The Tribunal has jurisdiction in th1S matter, and its jurisdiction includes the application of common
law principles including the law of contract, and the provlswns of the ACL. By reason of Section 64 of
the ACL, parties cannot contract out of the consumer guarantee provisions regarding services. As the
applicants fall within the definition of "consumer" in Section 3 ofthe ACL, the "consumer guarantee"
provisions in Part 3.2 Division I of the ACL are implied into the contract between the parties.
APPLICATION OF RELEVANT LEGAL PRINCIPLES
28 Section 60 of the ACL relevantly provides that there is an implied consumer guarantee that services
will be provided with "due care and skill"

30 The operation of Sections 60 and 61 of the ACL has recently been considered by the Supreme Court of
NSW in Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733, which involved a contract to
provide a luxury liver cnuse on some of the major nvers in Europe, where the cruise was truncated due
to floods. The plaintiff succeeded in proving the defendant had breached Sections 60 and 61 of the
ACL. Relevantly, in respect of the operation of Section 61 (l) of the ACL, Garling J stated:

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"391. It is to be noted that in the legislation the "particular purpose" stands independently of
and precedes the "supply ofsewices". It arises and is communicated at the time ofthe
acquisition of, but prior to, the supply of the services. As well, it is relevant to note that the
purpose is a unilateral one of the consumer. It is not necessarily a purpose which must be
explicitly agreed, nor does the purpose necessarily fonn part of a contract for the supply of
services. Indeed, in many cases it will not.
392. It is also worth noting that the particular purpose does not have to be an objectively
reasonable one. The ACL simply provides that if a particular purpose is made known, and the
supplier of services goes on to supply those services knowing (either expressly or impliedly) of
that purpose, then the purpose guarantee is brought into effect.
395 The use in the ACL of the qualification freasonably"when considering fitness for
purpose, shows that not every small lapse or shortfall in the provision of services will result in
a breach of the purpose guarantee. A supply of services will not be in breach of such a
guarantee unless the services are not reasonably fit for the identified purpose. The use of the
tenn "reasonably" also introduces an objectively referable measure. It is a qualitative rather
than a quantitative one. It requires an overall evaluation of the services provided, and a
determination of then fitness for purpose, qualified by the word reasonable.
396 Such a determination is also necessarily fact-dependant — which means that the issue
of whether one or other cruise has not achieved the purpose guarantee may provide a different
conclusion.'

In respect of Section 61 (2) of the ACL, Garling J stated (at [399]-[400]):

399. "In its application to these proceedings, the result guarantee contained within s 61(2)
of the ACL requires the plaintiff to establish that Scenic supplied the Services to him as a
consumer and that he had made known to Scenic, either expressly or impliedly, the result
which he unshed the Services to achieve.
400. If a supply then occurred, s 61 (2) of the ACL imposes a guarantee that the Services
supplied by Scenic will be of such a nature and quality that they might reasonably be expected
to achieve that result."

31 I am satisfied that the applicants have established that, at the time the contract for the wedding
reception was entered into, the applicants implicitly made known to the respondent that they wanted a
wedding that ran reasonably according to schedule, and at a venue that did not have a significant water
leak causing (i) water to drip from the ceiling; (ii) water on the floor; (iii) floor space restncted by
tablecloths on the floor; and (iv) a bucket on the floor to collect dripping water, With such water leak
occurring for a number of hours during the wedding reception. Accordingly, Section 61 (1) is invoked.

32 I am satisfied the applicants have established that the effect of the water leak has resulted in the
services provided by the respondent not bemg reasonably fit for purpose. Wmether the delay in the
schedule was approximately I hour (as the respondent asserts) or 2 hours (as the applicant asserts),
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there was, on any view of it, a significant delay. There is no factual dispute that there was a significant
water leak into the venue that affected the floor of the venue and the positioning of tables.

33 Although the respondent was not responsible for the water leak, and took reasonable measures to try to
alleviate the water leak by contacting the building manager expeditiously; moving tables; placing a
bucket on the floor; replacing wet tablecloths; and putting tablecloths on the floor to mop up water,
assessed objectively, the wedding reception was not fit for purpose due to the water leak into the
venue. It is immaterial to the issue of breach of Section 61 (l) of the ACL that the respondent did not
cause the water leak.

34 In respect of Section 61 (3) of the ACL, it is clear the applicants did rely upon the skill and judgement
of the respondent in organismg the wedding reception, m circumstances where the respondent's core
busmess activity is to orgamse and provide wedding receptions.
35 Having established breach of Section 61 (l) of the ACL, it is unnecessary for the Tribunal to make
findings regarding breach of Section 61 (2) of the ACL. However, I am satisfied that the applicants
have established that they implicitly made known to the respondent that the "result" they sought from
the services was a wedding reception that ran reasonably to schedule at a venue that did not have a
water leak, and the hiature, quality, state or condition" of the services provided by the respondent did
not reasonably achieve that result.

36 In circumstances where the applicants have proved breach of Section 61 of the ACL, they do not have
to prove that the respondent failed to provide services with due care and skill under Section 60 of the
ACL. No adverse findings are made against the respondent m respect of Section 60 of the ACL in any
event, because the respondent acted reasonably to attempt to alleviate the effect of the water leak and
mimmize its effect on the wedding reception.

37 The "force majeure" clause in the tenns and conditions of the respondent attached to its "wedding
proposal" document to the applicants dated 30 September 2016 does not operate to exclude Section 61
of the ACL by reason of Section 64 of the ACL. In any event, I am not satisfied that a water leak is an
"act ofnature" such as a "flood" that falls within the contractual definition of force majeure in any event.
ASSESSMENT OF DAMAGES
38 Under Section 267(4) of the ACL, the Tribunal may award damages for failure to comply with a
consumer guarantee in respect of the supply of services if it was reasonably foreseeable the consumer
would suffer loss or damage as a result of the failure. However, by reason of Section 267 (l)(c)(i) of
the ACL, if the breach of a consumer guarantee is a breach other than m respect of the failure to
provide services with due care and skill under Section 60 of the ACL, a consumer cannot be awarded
damages under that provision if the loss or damage occurred only by reason of acts, defaults, omissions
or representations other than of the supplier or services, or their employee or agent,.

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39 As discussed previously, I am not satisfied that there was any breach of Section 60 of the ACL by the
respondent, and the water leak was not caused by the acts or omissions of the respondent (including its
employees or agents). Accordingly, the Tribunal cannot award damages under Section 267 of the ACL.
40

41 [However], the Tribunal can award damages for breach of a consumer guarantee implied into contract by
reason of Section 61 of the ACL, separate and distinct from the remedial provisions of Section 267 of
the ACL. The ACL does not operate to limit or restrict the remedies available to a consumer under the
FTA, or the common law (Lam v Steve Jawin Motors Ltd [2016] NSWCATAP 186 at
Under Section 79U(l) of the FTA, the Tribunal must be satisfied that its orders will be "fair and
equitable to all parties to the claim" and may, if they are material to the facts and circumstances ofthe
case, take into account the factors set out in Section 79U(2) of the FTA.

41 Further, distinct from Section 267 of the ACL, the Tribunal also has power to award damages for
breach of the ACL under Section 236(1) of the ACL.

42 In assessing damages in this matter it is important to distinguish the claim for damages due to
"distress, anxiety, and disappointment" and the claim based upon diminution of the quality ofthe
services provided due to the water leak. In respect of non-economic loss damages due to "distress,
anxiety and disappomtment", such damages fall within the meaning of "non-economic loss damages"
and
Injury damages" under Sections 3 and I IA of the Civil Liability Act 2002 ('the CLA'). In respect of the
claim for non-economic loss damages of $6,557.00 due to "distress, anxiety and disappointment", the
applicants must establish that they surpass the of a most extreme case threshold under Section 16 of
the CLA, and even if the threshold is surpassed, the applicants are subject to the sliding scale of
calculation ofnon-economic loss damages under Section 16 of the CLA (Moore v Scenic Tours Pty Ltd
(No 2) [2017] NSWSC 733 at [865]; Insight Vacations Pty Ltd v Young [2010] NSWCA 137; Flight
Centre Pty Ltd v Louw [2011] NSWSC 132).

43 However, as the NSW Supreme Court held m Tralee Technology Holdings Pty Ltd v Yun Chen [2015]
NSWSC 1259, damages can be awarded due to a reduction of the quality of services that had been
provided and paid for, separate and distinct from the threshold to obtain non-economic loss damages
for "distress, anxiety, and disappointment" has been surpassed under Section 16 of the CLA. The key
issue is the cause of action and the nature of the breach. The breach, in the context of this matter, is the
provision of a wedding reception that was not fit for purpose due to the reduction in the quality of
services provided due to the water leak.

44 The applicants have failed to establish an entitlement to non-economic loss damages because the
Tribunal is not satisfied they surpass the threshold under Section 16 of the CLA. However, the
applicants have established that the quality of the service that were provided in respect of the wedding
reception and for which they had paid for in advance, were reduced by reason of the water leak into
the premises. In the circumstances of this matter, damages are awarded for the reduction in the quality
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of services that the applicants had paid for, rather than non-econormc loss damages for "distress,
anxiety and disappomtment" for which the applicants have failed to establish they surpass the
threshold under
Section 16 of the CLA.

45 The Tribunal is satisfied that it is fair and equitable that the applicants be refunded 25% of the amount
they paid for the wedding reception to the respondent by reason of the diminution of the quality of the
services provided due to the water leak into the venue. Further, the Tribunal is satisfied, based on the
invoice of Mint Photography dated 27 Janumy 2017, that the photographer charged (and the applicants
paid for) an extra hour of time in the sum of $300.00, and this was an extra cost caused by the
respondent's breach of Section 61 of the ACL. The documentary evidence of the applicants does not
establish any other additional expenses incurred.

46 Having viewed the financial records of both parties provided as evidence, the Tribunal is satisfied that
the applicants paid the respondent $12,800.00 for the wedding reception. Accordingly, damages are
assessed for breach of Section 61 of the ACL as $3,500.00.
CONCLUSION
48 In respect of breach of the consumer guarantee that services be fit for aparticularpurpose or result under
Section 61 of the ACL, the applicants are awarded damages of $3,500.00.

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