VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
CIVIL CLAIMS LIST	
vcat reference No. C4994/2020	

CATCHWORDS	
Short-stay holiday accommodation contract prevented by COVID-19 restrictions; claim for refund of booking tariff; whether doctrine of frustrated contracts applies; whether a contractual cancellation clause applies; whether alleged frustrating event must be unforeseen; measure of refund under Part 3.2 of the Australian Consumer Law and Fair Trading Act 2012.
	
FIRST APPLICANT	Karina Foster	
SECOND APPLICANT	Liam Sieker	
RESPONDENT	Suzanne Theodor	
WHERE HELD	Teleconference Hearing Room	
BEFORE	Member B. Ussher	
HEARING TYPE	Hearing	
DATE OF HEARING	20 August 2021	
DATE OF ORDER	26 August 2021	
date of reasons	3 September 2021	
CITATION	Foster & Sieker v Theodor (Civil Claims) [2021] VCAT 1025	

OrderS
The Tribunal orders that:

1	The title of this proceeding is amended so that:
a.	Karina Foster is reinstated as the First-Named Applicant in this proceeding; and
b.	the Respondent’s name is corrected to read, Suzanne Theodor.
2	The Respondent, Suzanne Theodor, must pay to the Applicants, Karina Foster and Liam Sieker, the sum of $2,750.

B. Ussher
Member
APPEARANCES:		
For the Applicant	Ms Karina Foster and Mr Liam Sieker, litigants in person	
For the Respondent	Ms Suzanne Theodor, litigant in person 	

Reasons
1	The Respondent, Suzanne Theodor, is in the business of providing short-stay, holiday accommodation and trades through a website with the domain name: www.playshack.com.au (the Respondent’s website). On this website, the Respondent offers accommodation at various holiday sites described as Play Shack 5, Play Shacks 3 & 4, and the Manna Gum Alpine Lodge. The Respondent described her business as a small family concern.
2	The Applicants, Ms Karina Foster and Mr Liam Sieker, brought this proceeding to recover the sum of $2,950, paid by them to the Respondent for the provision of short-stay, holiday accommodation. The Applicants contended that the short-stay accommodation contract was frustrated by State government COVID-19 restrictions.
The Defence
3	The Respondent defended this proceeding on the following basis:
a.	at the time the contract was entered into, the prospect of government restrictions being imposed, owing to the COVID-19 pandemic, was foreseeable, hence the Applicants must be taken to have assumed the risk that the accommodation would not be available to them at the time of their planned holiday; and further
b.	 as the risk was foreseeable, the parties had made contractual provision for the impact of “pandemics, government restrictions on home gatherings, acts of god [sic], force majeure events or other circumstances ….” On that basis, the Applicants were bound by this contractual term which precluded the recovery of the deposit.
4	The Applicants replied to this defence as follows:
•	the terms and conditions relied upon by the Respondent were not the terms and conditions given to them. The terms and conditions given to them contained no mention of “pandemics,” “ government restrictions,” “acts of God,” or “force majeure events;” and
•	the cancellation term did not apply because:
o	they did not cancel the booking, the booking was precluded by a supervening event, namely government lock-down orders, which frustrated the contract; and
o	on the frustration of the contract, the contract was immediately discharged and the cancellation term contained within it ceased its operation.
Summary of the Relevant Evidence
(i)	Undisputed matters
5	The following matters were not disputed:
a.	On 27 May 2020, Ms Foster enquired about booking accommodation at Play Shack 5 on the Airbnb website. Immediately, thereafter, she received an email from the Respondent in which the Respondent advised her to book directly on the Play Shack website as this would avoid an Airbnb surcharge of $602.50.
b.	Ms Foster then booked Play Shack 5 via the Respondent’s website for two nights in July 2020; the Applicants made the booking on behalf of themselves and 16 other persons;
c.	when booking on-line, Ms Foster was obliged to click on a box marked –
 “I have read and I accept the terms and conditions for this booking”
d.	the Respondent then emailed particulars of the Manna Gum Alpine Lodge to Ms Foster and suggested that this venue would be preferable to Play Shack 5; Ms Foster agreed to this change and the Play Shack 5 booking was cancelled by agreement;
e.	the booking for the Manna Gum Alpine Lodge could not be done on-line, as this was a new venue; as a consequence, Ms Foster and the Respondent confirmed by email that the booking was for the Manna Gum Alpine Lodge from 17 July to 19 July 2020 for 18 guests with a booking tariff of $2,950; this sum was deducted by the Respondent from Ms Foster’s credit card;
f.	the Respondent sent out a manual booking form, but Ms Foster failed to return this form.
g.	on 4 June 2020, the Respondent’s employee, Ms Thompson, sent to the Applicants a “Welcome Pack”; this pack contained a set of terms and conditions which made no reference to the possible impact of “pandemics”, “government restrictions on home gatherings”, “acts of God” or “force majeure events”;
h.	a few weeks prior to the booked date, Stage 3 restrictions were introduced by the Victorian Government. These restrictions prevented the Applicants and their fellow guests from travelling to the Alpine Manna Gum Lodge; the restrictions also prevented the operation of all non-essential businesses; the Manna Gum Alpine Lodge was not an essential business and was required to cease operating during these restrictions;
i.	Ms Foster, contacted the Respondent’s business and arranged to change the booking to 11 September 2020, with the hope that, by that time the restrictions would have eased.
j.	the COVID-19 restrictions did not ease, and from 20 August 2020, stage 4 restrictions were imposed;
k.	in light of the impending extension of the COVID-19 restrictions, Ms Foster contacted the Respondent’s business and requested a refund. Ms Thompson responded, on behalf of the Respondent, by advising that the Applicants could change their booking to another holiday site, later in the year or next year, or they could receive a 50% refund of the accommodation fee;
l.	Ms Foster replied on 5 August 2020 by stating that the majority of her fellow guests could not attend on future dates; she confirmed her request for a refund;
m.	Ms Thompson sent an email to Ms Foster which stated:
As you have booked during a known pandemic period, we are only offering date changes or we can refund 50% of the booking value. These offerings go beyond our terms and conditions and is a show of goodwill as a small business…
n.	Ms Foster replied by email which stated in part:
Please be aware that you, not us, are the party that is cancelling the booking. Under Stage 3 restrictions, you are prohibited by law to provide the service that we have paid for and you have contracted to provide us. This constitutes ‘frustration’ of the contract and entitles us, as the aggrieved party, to a full refund. We are not your insurer, we are a customer that has paid for a service that you are not providing due to no fault of ours.
Taking on a booking during the “known pandemic period” (whatever this means) is a risk that you took as the business operator, knowing that if you were unable to provide the service due to government restrictions you would need to refund the funds to your customer.
o.	the parties maintained their respective positions and the matter proceeded to VCAT for determination.
(ii)	Additional Evidence
6	Under cross-examination, Ms Foster stated that, at the time that she entered into the contract, she assumed that if the performance of the contract was precluded, the booking tariff would be returned to her, save for any allowance for reasonable expenses. She said that would be “justice”.
7	Ms Theodor tendered into evidence a copy of the Airbnb “Extenuating Circumstances Policy and the coronavirus (COVID-19)” statement. She said that this statement appeared on the Airbnb website shortly after 14 March 2020. It was on that date that the World Health Organisation (WHO) had declared the COVID-19 outbreak to be a “global pandemic”.
8	The statement provided that, for reservations made after 14 March 2020, the Airbnb “Extenuating Circumstances Policy” would no longer apply. This was because “COVID-19 and its consequences were no longer unforeseen or unexpected.”
9	Ms Theodor conceded that the Applicants had not booked through Airbnb, but contended that, as Ms Foster’s initial inquiry came through the Airbnb website, it was probable that she had knowledge of this statement and, therefore, could not contend that the consequences of the pandemic were not foreseeable.
10	Ms Theodor tendered into evidence a set of “Terms & Conditions”. She said that these terms and conditions appeared on her website at the time Ms Foster made the booking for Play Shack 5.
11	Clause 2 of the Terms and Conditions (the disputed term) relevantly provided as follows:
CANCELLATION & CHANGE OF BOOKING POLICY – We strongly recommend that you take travel insurance as we do not cover for extenuating circumstances such as natural disasters, pandemics, government restrictions on home gatherings, acts of god [sic], force majeure events or other circumstances that may force you to cancel your accommodation. A $500 cancellation fee applies when the booking is cancelled 60 days or more from booking commencement date, deducted from the refund monies already paid. A cancellation fee of 50% of the value of the booking tariff applies with notice of 30 to 59 days before booking commencement date. … No refund of booking tariff for cancellations made with less than 30 days notice. For changes of dates more than 30 days from the arrival date, an administration fee of $75 applies. No changes can be accepted less than 30 days from the arrival date, cancellation policy applies in this instance…
12	Ms Theodor conceded that Applicants’ booking for Play Shack 5 was cancelled by agreement and that Ms Foster did not book the Manna Gum Alpine Lodge through the Respondent’s website. Nevertheless, Ms Theodor contended that, as Ms Foster did use the website for the redundant booking, she would have been aware of the Respondent’s terms and conditions.
13	Ms Theodor conceded that on 4 June 2020 her employee, Ms Thompson had sent out a “Welcome Pack” to the Applicants. She conceded that this Pack contained a different set of terms and conditions which made no reference to natural disasters, pandemics, government restrictions, acts of God or force majeure events and which contained a different fee structure for cancellations under clause 2.
14	Ms Theodor said that she charged a $500 fee for cancellations made more than 60 days prior to the booked date because she still had to meet over-heads. She said that she had paid various expenses connected with the cancelled accommodation and only had $737.50 of the Applicants’ booking tariff left. She did not produce any proof of these payments.
Issues
(i)	Frustration
15	The basis of the Applicants’ case was that the doctrine of frustration applied to “kill the contact and discharge the parties from further liability under it”. On this issue, the law provides that a contract may be discharged under the doctrine of “frustration” when something occurs after the formation of the contract which renders it physically or commercially impossible to fulfill the contract or transforms the obligation to perform into a radically different obligation from that undertaken at the moment of entry into the contract.
16	This doctrine was summed up by Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council, where his Lordship said:
Frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.
17	The Applicants and the Respondent accused each other of cancelling the contract. The reality is that neither party expressly rescinded, repudiated or cancelled the contract. The performance of the contract was precluded by the COVID-19 restrictions promulgated by the Victorian Government under the Public Health and Wellbeing Act 2008 (Vic). As a consequence of these restrictions it was unlawful for the Applicants to travel to and take up the accommodation and it was unlawful for the Respondent to provide the accommodation.
18	A subsequent change in the law or in the legal position affecting a contract is well recognised as a head of frustration.
(ii)	The Disputed Clause
19	The Respondent, nevertheless, contended that the application of the doctrine of frustration was precluded by the provisions contained within the disputed term. This was so, because the doctrine of frustration was concerned with unforeseen, supervening events, not events which have been anticipated and provided for in the contract itself.
20	While it is true that a clause in a contract, which is intended to deal with the frustrating event, will normally preclude the application of the doctrine of frustration, the courts have made it clear that such clauses must be narrowly construed and the clause must deal with the consequences of the supervening event in a manner that makes “full and complete” provision for the “effects" of the supervening event upon the parties’ rights and obligations.
21	On this issue, the Applicants contended that they had not accepted the disputed term when entering into the contract. Rather they said that they were given a different set of terms and conditions by the Respondent. They understood that the terms given to them were the terms incorporated into the contract.
22	The evidence before the Tribunal establishes that Ms Foster did not signify acceptance of the terms and conditions contained upon the Respondent’s website, by clicking the “acceptance box”, with respect to the booking for the Manna Gum Alpine Lodge. The booking was done manually, and the Applicants were provided with a different set of terms and conditions, albeit after their entry into the contract.
23	Contract law requires that reasonable notice of the terms and conditions must be given prior to the formation of the contract. The Respondent contends that the disputed term appeared on her website at the time Ms Foster made the redundant booking for Play Shack 5. Accordingly, the Respondent argues that the Applicants knew that terms and conditions applied to such bookings. On this basis, the Respondent says that the disputed term was incorporated into the contract by this prior, albeit brief, dealing.
24	I accept that the Applicants were given notice that terms and conditions applied. I note that the Applicants do not dispute this, rather they contended that the terms given to them in the Welcome Pack were the terms which they tacitly accepted.
25	If the disputed term was indeed incorporated into the contract, then, on the facts, the dispatch of the terms in the Welcome Pack by the Respondent is unlikely to constitute a waiver or estoppel. The issue remains, however, whether the disputed term did appear as at 27 May 2020 on the Respondent’s website. If not, it could not have been incorporated into the contract.
26	The only evidence for the existence of the disputed term at this time is the Respondent’s assertion to that effect. The Respondent did not provide any computer generated or contemporaneous documentation to support this claim. Moreover, I note that the evidence was that, at the time of the booking, the particulars of the Manna Gum Alpine lodge did not appear on the website. This is significant, as the Welcome Pack contained a “Print Off” of the details of the Manna Gum Alpine Lodge accommodation taken from the website together with a “Print Off” of the Respondent’s terms and conditions (which did not contain the disputed term). Thus, if these documents were printed off the website at or about the date of the Welcome Pack (4 June 2020) or at some other time after 27 May 2020, the disputed term could not have been on the website at the earlier time when the contract was formed and, therefore, it could not have been incorporated into the contract.
27	The Respondent gave no explanation as to how the Welcome Pack terms came to be dispatched to the Applicants. Further, and, without any explanation, the employee who sent out these documents was not called to give evidence, despite the fact that the Respondent knew that this matter was a key issue of contest.
28	On review of all the evidence, I am not satisfied that the disputed term actually appeared at the time of the subject transaction on the Respondent’s website.
29	Even if I am in error on this finding of fact, I, nevertheless, find that the disputed term does not, on its own construction, exclude the application of the doctrine of frustration. As noted above, the Tribunal is required to construe such terms narrowly and to ensure that the term was objectively intended to deal with the relevant contingency, fully and completely.
30	The disputed term does not do so. None of the listed contingencies apply to this case. A pandemic, act of God or force majeure event (however these terms may be defined) did not, by themselves, constitute the relevant contingency. None of these general events rendered the contract a physical or commercial impossibility. Rather the contract was precluded by government restrictions, due to the incidence of the coronavirus, which restricted travel and which prevented the operation of non-essential businesses.
31	The only government restrictions listed in the disputed term are those which restrict “home gatherings”. What is more, this list of contingencies does not even refer to the impossibility of performance by either of the parties or contain any provision concerning the discharge of the contract. The listed contingencies only relate to those factors that may “force” the customer to “cancel” the accommodation. That is to say, the clause lists those contingencies which may “force” the customer to exercise his or her choice to cancel the contract. As noted above and, as stressed by the Applicants in their email correspondence with the Respondent, they did not cancel the booking, rather, the accommodation could not be provided.
32	The disputed term is, therefore, one-sided. It does not concern itself with the issue of the discharge of the contract or with the parties’ obligations in the event of a frustrating event. The disputed clause does not address the fundamental issue in this dispute, let alone make any complete or adequate provision for the legal consequences of frustration.
33	I find that the disputed term is merely an elaboration of the Respondent’s standard “cancellation & change of booking” term, it is not a “force majeure” or a “change of law” term.
34	For these reasons, I find that even if this clause was incorporated into the contract (which I do not accept for the reasons set out in paragraph 28 above) then it cannot exclude the application of the doctrine of frustration.
(iii)	The Issue of Foreseeability
35	The Respondent contended that the impact of the COVID-19 pandemic was clearly foreseeable and ought to have been foreseen by the Applicants. The Respondent contended that, in those circumstance, if the Applicants had made no adequate provision for the frustrating event, then, they had assumed the risk of the performance of the contract being prevented by government directives. The Respondent emphasised that it was open to the Applicants to take out travel insurance. The Respondent submitted that, having regard to these considerations, the doctrine of frustration could not apply in this case.
36	I accept that, in or about late March 2020, the Victorian Government had promulgated travel and business restrictions under the Public Health & Wellbeing Act 2008 as a consequence of the COVID-19 pandemic. I accept that these matters were known to all the parties. While these restrictions may have been eased, after some initial success with containment, in the absence of any immediately available vaccine, the likelihood that further government restrictions of this type might be imposed remained a real prospect as at 27 May 2020.
37	I, therefore, find that the relevant test for “foreseeability” under the doctrine of frustration, namely that, “a person of ordinary intelligence,” as at 27 May 2020, would have foreseen the imposition of such government restrictions as a “real possibility,” is satisfied.
38	Having reached this conclusion, I also note that there is judicial support for the proposition that where the parties have foreseen the supervening event, but have not made effective provision for it in their contract, they may be prevented from relying upon the doctrine of frustration. That does not mean, however, that the mere fact that an event was foreseeable necessarily excludes the application of the doctrine of frustration. Indeed, there is authority to the effect that, even where events have not merely been foreseen, but have been made the subject of an express contractual provision, the doctrine of frustration may still apply.
39	The issue of foreseeability has been dealt with in different ways by the courts. Two broad lines of judicial authority are discernible. The first line of authority requires a tribunal, in circumstances where the contingency was foreseeable, to objectively construe the contract so as to determine whether the silence of the party seeking to rely upon frustration indicates that they had the intention to assume the risk of the frustrating event or whether their silence indicates an objective intention to rely upon the relevant law to deal with the consequences of the event. Only in the latter event will the doctrine apply.
40	The second line of authority has emphasised that the ultimate decision as to whether a contract has been frustrated or not, irrespective of whether the risk was foreseeable, remains to be determined as a matter of law by a tribunal on consideration of what is fair and reasonable on all the facts. Under this approach a tribunal is not limited in its considerations to the mere construction of the contract. 
41	The English Court of Appeal in the case of The Sea Angel  has synthesized these two lines of authority. In that case, Lord Justice Rix (with whom Wall LJ and Hooper LJ concurred) considered that the application of the doctrine of frustration required a “multi-factorial approach”. In the view of Rix LJ, the factors required to be considered by a tribunal when determining whether the doctrine applied included the following:
•	the terms of the contract itself, together with its matrix or context;
•	the parties’ knowledge, expectations, assumptions and contemplations, in particular as to risk at the time of contracting, so far as these can be ascribed mutually and objectively;
•	the nature of the supervening event;
•	the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances; and
•	a measurement of the consequences of the tribunal’s decision against the demands of justice.
42	On the final point, Rix LJ held that:
Since the purpose of the doctrine is to do justice, then its application cannot be divorced from considerations of justice. Those considerations are among the most important of the factors which a tribunal has to bear in mind.
43	Under this multi-factorial approach, the foreseeability of the risk may, in certain circumstances, “be a special and highly relevant factor against which the issue of frustration needs to be assessed” but, “like most factors in most cases it must not be exaggerated into something critical, excluding, [or] preclusive”.
44	Applying this approach and noting that I have found that the relevant risk was foreseeable at the time the contract was entered into, I consider that there is nothing in the contract itself, as objectively construed, to suggest that the Applicants intended to assume the risk of this eventuality. Furthermore, while it was open to the Applicants to enquire whether they could obtain some form of cost effective insurance to protect them from such loss, it was equally open to them to assume, as they did, that the issue of the recovery of the accommodation tariff would be determined by the relevant law, should the risk eventuate.
45	Further, despite the foreseeability of the general risk, the contract shows no objective attempt by the Respondent trader to address her position should the contingent risk occur. The fact is that neither of the parties evidenced any objective intention to be bound by the contract in a situation where performance was rendered either physically or legally impossible. Both parties left the consequences of such an event to be determined by the relevant law (and this would have been the case even if the disputed term had been incorporated into the contract).
46	As for the assumption of risk, the Respondent trader was probably in a better position than the consumer on that score. The trader must know the profit margin on each accommodation contract and can readily factor into these margins, by adjusting the overall price, some component to militate the risk that, for some periods, the accommodation might be unavailable because of COVID-19 restrictions.
47	As for the relevant context, I note that the contract was a standard form contract prepared by the trader before any discussion by the parties had taken place. The only discussion that occurred between the parties involved the main subject matter of the contract, that is, the choice of venue, the date of the booking and the numbers to be accommodated. There was no genuine level of negotiation of the terms of the contract. Under the on-line booking system the customer was obliged to click on a box to acknowledge that the customer had read and had accepted the terms, as they stood. This approach was carried through by the Respondent with respect to the “manual” booking procedure. In these circumstances the Applicants were given no real opportunity to negotiate the impact of prospective government restrictions on the contract. In this context, the reality is that neither party anticipated such negotiations.
48	As the drafter of the contractual terms, the Respondent trader might have allocated the foreseeable loss by the insertion of an effective “force majeure” or “change of law” clause, setting out, for example, that on the occurrence of the contingent event a certain amount of the accommodation tariff would be allocated to the trader’s reasonable costs incurred prior to the occurrence of that event, with the remainder being returned to the customer. The Respondent seemed to acknowledge that some level of fairness along these lines was appropriate, by initially offering a refund of 50% of the booking tariff, but this was not a solution provided for in the contract, thereby enabling the Respondent to ultimately claim the full sum.
49	Of course, any such provision that provided that the whole of the accommodation tariff would be forfeited to the trader on the occurrence of a supervening event, would be open to challenge as an unfair contract term under Chapter 2, Part 2-3 of the Australian Consumer Law (Vic) [the ACL].
50	This leads directly onto the consideration of what Rix LJ referred to as the “dictates of justice”. On this issue, I note that the loss of contractual benefit, by reason of the frustrating event, was borne largely, although not entirely by the Applicants. The contractual impossibility resulted in a total failure of consideration by the Respondent. In such circumstances, the retention of the full booking tariff by the Respondent would result in an unjust enrichment, particularly in circumstances where the Respondent was excused from providing the accommodation and where she did not incur any of the direct expenses involved in providing those services.
51	While there was some evidence of the overhead expenses incurred by the trader, the accommodation tariff was clearly a far greater sum than those expenses. Moreover, it must be acknowledged that legitimate overhead expenses may be awarded to a trader on the application of the doctrine of frustration. This is a significant matter, as contractual frustration is an equitable doctrine, the primary purpose of which has always been to ameliorate the consequences of the strict performance of the contract in circumstances where such performance would unjustly enrich one of the parties or lead to similar injustice.
52	Therefore, having regard to the above matters, I have no hesitation in finding that the doctrine of frustration remains applicable in the circumstances of this contract, notwithstanding that the relevant contingency was or ought to have been foreseen by the parties.
53	By reason of this finding, and the matters set out in paragraphs 17, 18, 28, 29, 32, 33, 34 and 52 above, I find that COVID-19 directions, which were in force under the Public Health and Wellbeing Act 2008 at the time of the re-scheduled accommodation dates, rendered the performance of the contract physically and legally impossible and that, as a consequence:
•	the contract was frustrated; and
•	on frustration the parties were discharged from all obligations under the contract, including the provisions of clause 2, the “cancellation & change of booking” term.
Further Consequences of Frustration
54	The consequences of frustration in Victoria are regulated by Part 3.2 of the Australian Consumer Law and Fair Trading Act 2012 (the ACL&FTA). Section 36 of the Act provides that, on frustration, the contract is discharged and all amounts that have been paid to any party when the frustration occurs are recoverable. This position is subject to a qualification in s.37 of the Act. This section relevantly permits the Tribunal to allow a payee, who has incurred expenses before frustration, “in or for the purpose of the contract” to retain all or any parts of the amount paid. The Tribunal may allow this, “if it considers it just to do so having regard to all the circumstances of the case”.
55	For the purposes of calculating such a sum, s.39 of the Act provides that the Tribunal may include any amount that appears reasonable for overhead expenses and for work performed personally by the payee.
56	When assessing any such sum it is necessary for the Tribunal to fix the discharge date. On this issue the evidence indicates that the stage 3 lockdown was implemented on or about 9 July 2020 for an initial period of 6 weeks. The stage 3 directions were maintained until the implementation of the stage 4 directions on or about 20 August 2020. Over this time the infection rate was increasing.
57	From the correspondence, it is evident that both parties had concluded by 5 August 2020 that the provision of the accommodation would be precluded by the COVID-19 directions. I consider that that determination was a reasonable and proper assessment in all the circumstances. The parties were not required to “wait and see” until the time of the booked date, they were entitled to make an informed judgment on the basis of what had occurred and what was likely thereafter to occur. Accordingly, I find that the date of discharge was 5 August 2020.
58	The Respondent was adamant that she had incurred overheads prior to the discharge date. She did not indicate the sum involved or how this sum should be calculated. The Respondent also claimed various expenses but did not provide any proof of these expenses or the dates of payment. The burden of proving that these expenses were in fact incurred and that retention of these sums was just in all the circumstances, rested on the Respondent.
59	Having regard to all the circumstances, I accept that some expense in the form of business overheads was incurred by the Respondent with respect to the accommodation booking, such expenses were inevitable. However, given the poor quality of the evidence, I can make an allowance of no more than $200. This sum is the best estimate in the circumstances.
Conclusion
60	I conclude that the Respondent may retain $200 paid to her by the Applicants pursuant to s.37 of the ACL&FTA and must return the balance of the funds paid, namely, $2,750, to the Applicants in accordance with s.36 of the ACL&FTA.
61	The orders made above reflect these findings.

B. Ussher
Member