The Law Handbook 2024

Chapter 7.4: Taking action as a consumer 717 – service delivery and disruptions; – ticketing and myki, including refunds and reimbursements; – conduct of public transport staff; – public transport infrastructure, vehicles and land; and – public transport works. The PTO will attempt to resolve the complaint by agreement, but in the absenceof anagreedoutcome, the PTO can make a binding determination up to the value of $5000. The PTO cannot investigate complaints about fare increases, government policy or public transport fines. As well as individual complaints, the PTO can also investigate broader systemic problems relating to public transport. All these schemes are independent and free. They are also less formal and generally speedier than tribunals and courts. You are generally required to give the business a chance to resolve the complaint before the scheme will consider it. When resolving a dispute, the schemes are required to take account of law, good industry practice and what is fair and reasonable in all the circumstances. For a list of alternative dispute resolution schemes, see ‘Contacts’, at the end of this chapter. Court remedies Rescission Rescission is the revocation (cancellation) of a contract. It is a legal remedy usually provided by a court order cancelling the contract. The court also makes orders that aim to restore the parties to the position they were in before the contract. This means that any money or goods that passed from one party to the other are returned. Usually, the basis for rescission is the breach of a condition of the contract. Where the breach relates to a warranty, rescission is not normally available, and the wronged party only receives damages. (For the differences between conditions and warranties, see ‘The terms of a contract’ in Chapter 7.1: How contract law works.) The remedy of rescission is very restricted. It is important that action to rescind be taken as soon as a breach of the contract is discovered. The right to rescind is lost if the wronged party does not complain promptly or deals with the contract in a way that suggests acceptance of the breach. A further restriction on the right to rescind is that it must be possible to return the parties to the position they were in before the contract. For example, if it is not possible to return the parties to their positions before the contract because the item bought has been used up, or cannot be restored to its original condition, the contract will not be permitted to end by rescission. Damages The most commonly used remedy for breach of contract is payment of money, called damages. The sumof money is calculated to compensate the wronged party for the loss caused by the breach of contract. The aim of an award of damages is to place the wronged party in the same position as they would have been in if the contract had been properly performed. The amount of damages to be paid is the loss that the wronged party could be expected to suffer as a reasonable consequence of the breach. In addition, damages are payable if it can be proved that the party in breach of the contract knew that the other party would suffer a special or unusual loss if the contract was breached. At the same time, the wronged party is always required to minimise the damage suffered. So, all reasonable steps to ensure that the loss suffered is as small as possible must be taken by the wronged party. Damages available to the buyer The remedies available to the consumer in damages vary according to the circumstances. First, where the seller has wrongfully failed to deliver the goods, or there has been a breach of condition entitling the buyer to reject the goods, the buyer may sue for damages for non-delivery. Damages are usually calculated at the point of breach to reflect the loss at that point. However, where a contract relates to the delivery of goods, loss can be calculated on a number of different bases, such as the retail price of the goods or, alternatively, the wholesale price of the goods. In these circumstances, the general rule is that the loss should be calculated by reference to the available market. An ‘ available market ’ is a market in which buyers for goods like the contract goods are readily available. This is a question of fact in a given situation. If there is an available market for the goods, then the damages will be the difference (if any) between