Burke v Wyndham Vacation Resorts South Pacific Limited & Ors [2015] QCAT 458

CITATION: Burke v Wyndham Vacation Resorts South Pacific Limited & Ors [2015] QCAT 458 PARTIES: Gary James Burke (Applicant) v Wyndham Vacation Resorts South Pacific Limited, Wyndham Vacation Resorts Asia Pacific Pty Ltd, Worldmark South Pacific Club, Finance by Wyndham Pty Ltd and Amju Mathew (Respondent) APPLICATION NUMBER: MCDO0024-15 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 21 September 2015 HEARD AT: Caloundra DECISION OF: Magistrate Tonkin DELIVERED ON: 1 October 2015 DELIVERED AT: Caloundra ORDERS MADE: 1. That the respondents pay the applicant the sum of $2,500.00 plus $105.00 filing fee. CATCHWORDS: Other minor civil dispute matters APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Respondents 1 to 4 are related entities. Respondent 3 is an ASIC registered managed investment scheme of which Respondent 1 is the responsible entity. Units are issued by the first Respondent to investors such as the Applicant, called “Vacation Credits”, in exchange for money. On 19th November 2014, Mr Burke had an appointment to see the fifth Respondent, Mr Mathew, who is a sales representative of the first 4 respondents. Mr Burke applied to finance the acquisition of 15,000 vacation credits additional -- 1 of 4 -- 2 to his existing account, and paid a deposit of just under $6,000 cash, and borrowed $33,070 with interest. He was also allocated an additional 15,000 bonus credits, and given a discount on the interest rate normally applicable to the finance provided by the fourth respondent, together with a “241 cruise”. [2] Mr Burke claims that he was induced to purchase the additional credits (and accordingly borrow to finance that acquisition) and upgrade his status to Diamond membership, on the basis of the bonus points, the finance discount and importantly the “241 cruise”, which he understood to be a different product from the 241 Cruise Certificate, with which he was already familiar. He asserts that the representation made to him by the fifth respondent, which he was already familiar. He asserts that the representation made to him by the fifth respondent, which he started to discuss in an email exchange that started on 24th November, and was enlarged on 8th January 2015, and which Mr Mathew did not take the opportunity at the time to refute, was that the 241 cruise he was receiving meant that 2 persons could undertake a cruise at the price payable by one, and that price was $2,500. He had, before the appointment he said, made enquiries about cruises and costs, and ascertained that ICE cruises, an entity unrelated to any of the respondents, was offering a cruise for two at around $5000, half the usual cost. Additionally he said, before the meeting of 19/11/2014, he had made enquiries about the value/benefits of a 241 Cruise Certificate” and found that it would not reduce the cost of a cruise for below $5,000. [3] When he sought to use the 241 Certificate, he was required to purchase the cruise at the “rack rate” (i.e. full price of around $5,000) for one, and the second person had to pay port fees, government duties and gratuities. Thus, there was no advantage to him in the “gift” of the My 241 Certificate which was what he received from the respondents. He seeks either the sum of $2500 to compensate him for the balance he had to pay for the cruise for himself and the new contract for acquisition of the additional 15,000 points entered into on 19th November be set aside, and he be restored to the position he was in financially prior to the 19/11/2014 appointment. [4] He also asks QCAT to investigate the sales practices of the respondents. This tribunal has no such power. Neither is QCAT a prosecutorial authority for breaches of the Australian Consumer Law. That law however provides some remedies to consumers, and thus empowers QCAT to make relevant orders. [5] The application is hotly contested by the respondents, who deny that Mr Mathew would have made any such representation. The respondents do not deal in cruises, thus their sales representatives have no basis on which to advise on cruise costs, and the 241 certificate has been had by Mr Burke previously in 2010, so he would be familiar with its conditions and limitations. He would have been given a photocopy of it on the day, with the certificate to follow by mail. He denied that he received the copy. Additionally, according to the respondents, he attended the presentation to purchase more credits and discuss how he would finance a holiday to -- 2 of 4 -- 3 Europe. The 241 cruise was always to be by way of provision of the certificate as no other 241 cruise product exists. It is simply a gift certificate provided at the conclusion of the transactions, in a sense, if I understand the evidence, the “cherry on top”. It was never the focal point of the discussion, according to the respondents. [6] Mr Burke points to the trail of email correspondence following 19/11/2014, starting on 24th November, continuing on 8th January 2015, after a second face to face meeting with Mr Mathew. In the emails, he specifically confirms the content of his discussions with Mr Mathew, including that the My 241 certificate has effectively no value to him to gain a reduction on cruise costs, given that he is forced to purchase the ticket for the first traveller at the “rack rate”, i.e. full price. Mr Mathew, rather than taking the opportunity to immediately reject Mr Burke’s account of the consultation with him, responds to the email by saying that he is “having one of our cruise experts Melinda Wheeler sort this out asap and will touch base tomorrow at the earliest to ensure that you are booked in that cruise with the 241 deal”. That of course was not possible and the best deal available cost a little over $5,000. Mr Burke could have booked it direct with ICE cruises, who at the time of his original appointment with Mr Mathew, was having a promotion. [7] The effect of Mr Burke’s argument is that the Tribunal should infer from this a concession by Mr Mathew that Mr Burke’s email account of their discussion is correct, as, if it was not, one would expect Mr Mathew to have promptly protected himself by immediately replying to correct any misconception by the customer. [8] Mr Burke was apparently accompanied by his wife to the presentation on 19th November, however he did not call her to give evidence at the hearing, to corroborate his version of events. There were no other witnesses, and there exists only a brief partly typed, partly hand written worksheet as the contemporaneous record of the consultation. He relies on the use of the words “241 cruise” as evidence that Mr Mathew was not discussing the certificate, but something different. [9] Whilst one has sympathy with the respondents, as I accept that they do not deal in cruises, nevertheless, they face a real difficulty overcoming the email confirmation by Mr Burke of his discussions with Mr Mathew. Mr Mathew impressed (by phone and in the email exchanges) as a polite and helpful young man, but perhaps he was naïve in dealing with a customer as busy with research and articulate and business savvy as Mr Burke. [10] I accept that Mr Burke had done considerable research about cruise costs and availability before his 19/11 meeting with Mr Mathew, so that by 24/11 he was weighing up the options on the basis of his discussion with Mr Mathew with a departure date of March 2015 to Hawaii. He was aware that he could get a cruise for 2 for around $5,000 from ICE cruises, and I am satisfied that as a result of representations by Mr Mathew on 19th November and confirmed on 8th January, he was led to believe that the respondents would facilitate his purchasing a cruise for himself and his wife for approximately $2,500, plus gratuities and port and government fees for the -- 3 of 4 -- 4 second traveller as part of the package involving his acquisition of more credits on 19th November. His version of what was discussed with Mr Mathew is corroborated by his contemporaneous emails written following those 19th November 2014 and 8th January 2015 consultations. Whilst Mr Mathew may have been unqualified to make such promises to the customer, and exceeded the authority given him by his employer by doing so, that does not allow the first and fourth respondents to escape liability for the acts of the employee who possessed ostensible authority to make representations on their behalf. The customer Mr Burke, despite his having received My 241 certificates in the past, was not to know that representations about the value of the benefits of a “241 cruise” by Mr Mathew were unauthorised. Nor was he to know that there was no such product as a “241 cruise”. [11] The emails are what persuade me that Mr Burke’s account is both plausible and reliable. In their absence, and in the absence of corroboration by his wife, he would have had greater difficulty in discharging the burden of proving his case on the balance of probabilities. [12] I am therefore satisfied that Mr Mathew represented to Mr Burke on 19th November, and confirmed on 8th January, that the gift of the 241 cruise, which in reality was the My 241 Certificate, would confer on him the benefit of a cruise for 2 at the cost of $2500 plus port and government charges and gratuities. I am satisfied that that was incorrect, and that he had to pay an additional $2500 to discussions with Mr Mathew. I am satisfied that he was acquiring goods as a consumer in his transaction with the first 4 respondents, as understood by s 3 of the Australian consumer Law, that the representation was misleading, and that there were no reasonable grounds for making the representation (s4). I am also satisfied that although it was characterised as a gift, his entitlement to receive it arose from his purchase for valuable consideration of the initial 15,000 credits. He was entitled to expect that the 241 cruise had the value Mr Mathew represented it did. It was not fit for the disclosed purpose. I am also satisfied that the misrepresentation gives rise to a major failure, and that it can be remedied. The supplier has refused to remedy the failure, and the consumer is entitled under s 259 to recover from the supplier the cost of the remedy, being the additional amount the consumer had to pay, calculated at $2,500. [13] The respondents argue that Mr Burke is disqualified from making the claim as he purchased his cruise holiday via Flight Centre and not the respondents. I find no merit in that argument. [14] I accordingly order that the respondents pay the applicant the sum of $2,500 plus $105 filing fee. -- 4 of 4 --