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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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Hi, A month or two ago I purchased on my credit card a 10

Customer Question

Hi,
A month or two ago I purchased on my credit card a 10 day hotel stay in Bali. My now ex girlfriend purchased the tickets for the holiday on her card. At the time I remember clearly telling her to not get the non refundable tickets. Now as it happened both the hotel and the air fairs are non refundable. We have since broken up and I have managed to get my money back on my credit card... I asked her to do the same. I have managed to get a refund but she did not. She is now harrasing me and threatening to take me to court if I don't pay her $700 which she thinks is hers. Has she got a case against me here? I purchased the hotel in my name on my paypal account. I think she used her credit card to get the flights.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Patrick H. replied 1 year ago.
Hello and thank you for your question.

If you were in a defacto relationship for more than two years then family law principles would apply to any property settlement between you and the court would likely make you share your net assets and liabilities in accordance with the money you have put in,

However, if the relationship was not a defacto one, or was of short duration, and the agreement was that you would arrange the accommodation and she would arrange the tickets, then you have a very arguable case that it is her problem that she chose to get tickets that were non refundable whilst you paid for accommodation on the basis that it could be refunded if you canceled. Very likely you paid more because the accommodation was refundable, and she paid less for non refundable tickets. As she personally benefited from the decision to pay for cheaper non refundable tickets, arguably she ought to bear the risk that she might need to refund them.

That said, the courts have a wide discretion as to how to deal with disputes of this sort and some magistrates may nevertheless conclude that you should have shared the cost and any loss evenly.

So in short, I think you would have a 75% chance of succeeding if you defended her claim in court (assuming the you were not a defacto and the arrangement was for you to pay for accommodation and her the plane tickets) but there is always a risk when going before the courts, particularly the magistrates court which can be less predictable.

So your options are to:

1. Stand your ground and refuse to pay her, in which case there is a good chance she will give up since taking legal action is time consuming and could be expensive if she involves a lawyer; or

2. Try to negotiate by agreeing to pay he some lesser amount to get rid of the risk that she might sue you successfully; or

3. Simply capitulate and give her the money to get her off your back.

My guess is that if you stand your ground she will eventually go away, but that it might be worthwhile to pay her something to get her off your back. If you do only pay her on the basis that she signs a letter stating that the amount you pay her is in full satisfaction of any claim she may have against you.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

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Thank you and good luck.

Patrick
Customer: replied 1 year ago.

Hi Patrick and thank you for your answer. Basically both the hotel and the flights were non refundable. With regards XXXXX XXXXX hotel which I paid for... it was totally all in my name with my credit card so do the small claim courts not worry about that and just rule what they think is fair? Shouldn't it be her responsibility to chase up her money and for me to chase mine up.Technically the hotel money that I managed to get a refund off was mine so does she have rights to my money?


Oh and we were only together for 2 months.


Are there any costs associated with the small claims (minor claims) court? I also understand you cannot get legal representation if under 10K and no magistrate is this correct?


 


Dave

Expert:  replied 1 year ago.
Regardless of whether you obtained your refund despite the hotel being non refundable my advice stands that very arguably it is her problem.

However whether the court takes the view that each of you are responsible for chasing up your own money will depend on the view they form as to the arrangement you made. On the view I am favouring, and based on what you have said, the arrangement was that each of you would be responsible for paying for different aspects of the contemplated holiday, and you are essentially trading your booking of the hotel for her ticket, so when you do not proceed with the 'swap' you are each respectively responsible for chasing your own refunds.

The court might take the view that in fact the intention was that you share the costs roughly evenly and it was a mere decision of convenience that in actuallity the arrangement was for you to get accommodation and her to get tickets, but that at law you were each acting as each others agent when paying for your partners share of either the tickets or the holidays. On this view you would have to refund her for any unrecovered component of the tickets.

Although I prefer the first scenario based only on your version of the facts, in practice, the court may prefer a different interpretation of the facts, which can also be influenced by the evidence given by your partner, and as this is unknown, there is always a risk that a case like this will not go the way you expect. That is why I have estimated there is a 25% chance you could lose if you fight this.

In my experience, magistrates courts can be particularly unreliable because their decisions are generally not apealed (too expensive to appeal small matters like this) and courts tend to be a be in a hurry to make a decision rather than the careful legalistic approach of higher courts (again this reflects the fact that such disputes do not warrant a great deal of the courts time because courts cost many hundreds, perhaps thousands of dollars an hour to operate), so some injustice can occur in the magistrates court from time to time.

For small claims of this sort, the parties are generally not permitted to have lawyers represent them, although they may seek legal assistance for preparatory purposes (though it would not normally be worthwhile). This makes bringing matters before the court more affordable, however also adds to the unpredictability of such proceedings as often unrepresented parties mess up perfectly good cases because they do not understand exactly what is required to suceed in their case. So whilst costs are kept down, the quality of the system is in practice reduced.

The only usual expenses for minor claims of this sort is an initial filing fee (paid by the applicant) and the time and effort the parties have to put into preparing their cases, as a result cost orders are almost never ordered for such disputes so even if you win, you won't be compensated for your time. The filing fee can be found here:

http://www.magistratescourt.wa.gov.au/_files/Magistrates_Court_Fees.pdf

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4564
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi again Patrick, sorry one more thing if I may... will she need proof that I have even got the refund? she said she rang the hotel in indonesia and they said a refund was issued. Can she obtain a written statement from them as proof enough? I have never told her that I have received the refund, I have only said no I haven't.


 


Dave

Expert:  Patrick H. replied 1 year ago.
If it goes to court she may be able to get a confirmation from the hotel or could subpoena your bank records to show you did get a refund. So if you lie to the court about this you could get in serious trouble and it would certainly incline the court to believe her over you on any other evidence.

I trust this assists.

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