Hi, this is my question:
Q5 Reflection 9: Exemption Clauses
Kate Bushel made a reservation for 7.30 pm on a Saturday night at Town Top Restaurant, Spencer Street, Melbourne for eight people for their famous and very popular six course Islander feast. The occasion for the dinner was to celebrate Kate's 50th birthday with family and friends.
When Kate made the reservation over the telephone, the restaurant employee she spoke to asked for a contact phone number and her credit card details. When Kate asked why they wanted her credit card number she was told that they required it to confirm her reservation. She was also told that if she wished to cancel the reservation or reduce the numbers in her party she must let them know not less than 24 hours beforehand otherwise a cancellation fee would be charged. The amount of the cancellation fee was not mentioned.
On the evening of Kate's birthday dinner, Kate and her party left early and travelled to the city in a maxicab for pre-dinner cocktails. On the way, the taxi was involved in a collision and all of the passengers were taken to the Royal Melbourne Hospital by ambulance. Fortunately, it was a quiet night at casualty and they were examined immediately. They were all battered and bruised, but they were all discharged shortly prior to 7 pm
Although there was still enough time to get to the restaurant for their dinner reservation, they did not feel well enough and all of the party decided that they should cancel and Kate rang the restaurant to let them know. The person who answered the phone at the restaurant thanked Kate for calling to cancel the reservation and wished them all a speedy recovery from their injuries.
When Kate received her credit card statement next month there was a $2,000 charge on it from Town Top Restaurant. Kate rang the restaurant to query the charge and was told by the owner, Tim Topper, that as Kate had failed to give at least 24 hours' notice of the cancellation, as required by their reservations policy, a cancellation fee of $250 per person was payable. Kate had to concede to Tim that she was told a cancellation fee applied and that it would be charged to her credit card. However, Kate pointed out that she had not been told the amount. Kate also told Tim about the accident on the way to the restaurant and argued that it was not her fault they had to cancel. Tim refused to refund the cancellation fee.
The restaurant's reservations policy is displayed on a sign in their entrance area and is also printed at the back of their menus.
Town Top Restaurant : Our reservations policy
So that we can look after you we ask that when making a reservation you provide the following information -
- The full name and mobile contact number of the person who is authorised to make the booking;
- The number of diners in your party and if you have dined with us before;
- If any of the members of your party have specific dietary requirements or allergies so we may accommodate these in advance;
- To secure a dinner reservation we require a credit card number (see below for the terms and conditions.)
For all dinner reservations we require a credit card number to secure the booking. We do not process a deposit however should you need to cancel your reservation or reduce the numbers in your party you must give us at least 24 hours' notice. Failure will incur a cancellation fee of $250 per person cancelled.
Advise Kate whether she is likely to be successful against Town Top Restaurant for the refund of the $2,000 under Contract law only. Cite cases and authority to support your advice.
I think she should get the refund because no one told her the amount of cancellation fee nor at what time it will occur. Accident that happened was out of her control too, she was not able to predict it will happen on the way to the restaurant.
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