In an earlier post – Legal issues arising from disasters (August 2, 2025) – I mentioned that there are many legal issues beside those related to the response by the emergency services.  Nicholson v Sydney Harbour Escapes Pty Ltd [2025] NSWCATAP 198 (14 August 2025) is an example of legal issues arising in this case not from the impact of a hazard but from the cost of taking what many would consider to be a reasonable risk mitigation strategy.

In this case the Nicholson’s had planned a wedding on Shark Island on Sydney Harbour.   They ([2]):

… booked two boats through the respondent, Sydney Harbour Escapes Pty Ltd, to transport them and their family and wedding guests to Shark Island for their wedding. On the day of their wedding there was a state-wide weather event. The charter was to commence at 1:20pm and finish at 5:00pm on 5 April 2024. Weather conditions were very poor, and the appellants decided not to proceed. There was dispute between the parties about the contractual obligations in such circumstances. The appellants were invoiced for the charters and paid $5960 to the respondent. They commenced proceedings against the respondent in the Consumer and Commercial Division and initially requested that the respondent provide the service for two boats within the six-month timeframe for postponement outlined in the contract. By the time of the hearing the appellants were seeking a refund of the moneys paid for the charter, not a credit for future use.

The trial panel said (at [18]; emphasis added):

  1. It was common ground that the respondent was engaged to charter two boats to carry the appellants, family and friends to a wedding ceremony on Shark Island on 5 April 2024. The contract was said to have been negotiated over the telephone and through email and the purpose of the agreement was to transfer the applicants and their guests to an island where the wedding ceremony only was to take place. Two boats were to be supplied, one at a cost of $4660 and the other at a cost of $1300. It was an outdoor wedding and the appellants stated they were aware of the risks involved in relation to weather. There were no pre-contractual discussions relating to who should bear the risk of the booking if there was poor weather.
  2. The relevant contractual provisions were cll 9 and 22 of the written contract. Clause 9 dealt with cancellations and cl 22 related to the question of what would happen if there was “unsafe” weather. The Tribunal set the terms of these provisions in full.
  3. The appellants became aware of ominous weather conditions forecast for 5 April 2024. There were numerous communications between the appellants and the respondent about whether the charter was safe to proceed which commenced three days before the day of the charter.
  4. The appellants first wrote to the respondent on 2 April 2024 at 10,40am setting out the planned timeline for Friday, 5 April 2024. They raised concerns about the weather reports. There were emails back and forth between 2 and 4 April 2024. The appellants raised concerns about the weather forecast and queried whether the respondent was comfortable to proceed. On each occasion, the respondent replied that the charter could procced. Guests could be accommodated under cover. On 4 April 2024 the appellants wrote to the respondent attaching screenshots from the Bureau of Meteorology of marine and wind warnings for strong winds and 100% chance of rain with chance of thunderstorms. They raised concerns about their elderly and less mobile guests being safe in the forecast weather conditions, however, indicated they would rely on the respondent’s skill and judgement in relation to that issue. Later that afternoon the respondent advised that the boat operators and skippers had been consulted regarding the weather forecast for 5 April 2024. The weather forecasts were an overview of generalised conditions across the region, the weather conditions in the Harbour areas were significantly less severe and there was no reason to believe guest safety would be impacted by the current or forecast weather conditions. The respondent expressed confidence in safely going ahead with the booking.
  5. On the morning of the charter at 10:17am the respondent wrote to the appellants acknowledging a phone call earlier that day and asked the appellants to confirm in writing their telephone advice that they would not be proceeding with the booking on that day. It was noted that cancellations within 14 days of the event were non-refundable but that the respondent offered to work with the appellants for a partial credit towards a future booking. The appellants replied to the respondent at 10.25am. They stated that they did not think it was safe to proceed with the charter. The Bureau of Meteorology had issued a severe weather warning, marine wind warning and hazardous surf warning for the Rose Bay Area, which was the closest area to Shark Island. The NSW Premier had held a press conference and referred to 90-kilometre hour winds. He made a public announcement that Sydney was to undergo a significant weather event.

And at [19] ‘The respondent submitted that, in the lead up to the booking, the weather was unpleasant but not unsafe’.

I would think that most members of the emergency services and the emergency services themselves would think that people should indeed have regard to the weather warnings and the advice of the Premier about a ‘significant weather event’. The skipper of the vessel (at [21]-[22])

… acknowledged that he had seen the Premier’s warning on television that morning but gave evidence that had conducted many thousands of charters and thought it was safe, irrespective of the Premier’s forecast. He was not alarmed as the Premier was talking of NSW generally and not Sydney Harbour. The skipper gave evidence that the most dangerous times for charters were when guests get on and off boats. Sydney Harbour only had a half metre swell on that day which would not present a risk. He had prepared the boats for the charter from 8:00am on the morning of 5 April.

The skipper also gave evidence that, after the appellants had cancelled, he still travelled the route to Shark Island and took a video. That video showed that, while the route was unpleasant, it was not unsafe…

The Tribunal found (at 23])

… that the appellants had adopted the risk of holding a relatively inflexible event with regard to timing. The contract was negotiated between the parties and the terms and conditions recorded and constituted acceptance of who adopted what risks in relation to cancellation due to weather. The appellants had no discussions with the respondent about this issue prior to entering into the contract and they chose to be bound by the cancellation terms offered by the respondent without demur.

The Nicholsons were therefore bound by the condition that said cancellations with less than 14 days notice forfeited the entire payment and the respondent was entitled to keep the $5960.  Critically the contract provided that the decision of whether the charter should proceed and whether harbour conditions were unsafe lay with the charter operator ([26]). Further:

…There was no term or condition whatsoever that the booking ought to be cancelled or postponed if some third-party such as the Bureau of Meteorology or the Premier provided opinions or forecasts about the state of the weather.

Interestingly the Tribunal said (still at [26]):

Finally, the evidence [of] SHE’s skipper was compelling and ought to be given significant weight. I am satisfied that from the metadata evidence provided post hearing the skipper took a number of videos showing the weather conditions on the route that would have been followed if the charter had preceded on 5 April. I accept the skipper’s evidence that other forecasts relied on by the applicants applied to more general areas other than the relevant area within Sydney Harbour. If the charter had proceeded the weather was far from pleasant on the route but it was not dangerous or unsafe as contended by the applicants.

Of course that is wisdom with hindsight.  The decision whether to cancel the charter had to be made before the time of the trip.  The fact that at the time of the proposed trip the conditions were safe has to be irrelevant to the question of whether any decision to cancel the trip in light of the forecast and warnings was reasonable.

As already noted, the trial panel found for the respondents and held they were entitled to their charter fee.  The applicants appealed.

In their appeal they argued (at [42]) that Tribunal did not give sufficient weight to:

… evidence about the Premier’s statement and the Bureau of Meteorology warnings. In support of this contention, the appellants seek to rely on new evidence, being a letter from Nicole Hogan, Assistant Commissioner, Emergency Management NSW State Emergency Service (SES) dated 2 January 2025, which refers to the severe storms that occurred on 5 and 6 April 2024 where the SES issued multiple warnings for severe weather.

Further they argued (as I suggested above) that ‘The evidence of how the day actually unfolded is irrelevant as the decision should have been made on the morning by the respondent based on the forecast.’

The panel allowed the appeal but not for any of the reasons discussed, rather it was a procedural issue.  The skipper of the charter boat had gone out on the 5th April and travelled the route that would have been taken had the charter proceeded. There was a challenge to the video evidence produced on that trip. The trial panel gave permission for the respondent to file meta data to confirm the date and time the video was taken. The appeal panel said (at [67]-[70]):

… The respondent provided this evidence but also provided further videos and related metadata. In addition, the respondent filed and sought to rely on statements from other boat operators about weather conditions on the day. The appellants were not given the opportunity to respond to this additional evidence or to test its veracity.

Despite this, the Tribunal had regard to this additional evidence, and it is apparent from that the Tribunal found the respondent’s evidence, as provided by the skipper and supported by the additional post-hearing evidence, to be “compelling”. The Tribunal found that the skipper’s evidence “ought to be given significant weight”. The Tribunal also accepted the skipper’s evidence that other forecasts relied on by the appellants applied to more general areas rather than the relevant area within Sydney. In other words, even though the forecasts from credible sources were predicting severe potentially unsafe weather, the Tribunal preferred the evidence of the skipper about the prevailing weather conditions in Sydney Harbour on 5 April 2024.

There is no difficulty in a Tribunal making further directions about evidence to be filed at the end of a hearing when the issues were not sufficiently explored during the hearing, particularly if it is apparent that one of the parties wants to test the evidence. The Tribunal made the directions at the end of the hearing to give the Tribunal and the appellants the opportunity to test whether the video recorded weather conditions at the relevant time. However, the post-hearing evidence provided by the respondent went well beyond this.

This additional evidence filed was not only outside the boundaries of the Tribunal’s directions but was, on its face, highly material to the Tribunal’s decision.

But because this material was filed after the hearing, the appellants had no opportunity to review or challenge the evidence. This represented a denial of natural justice. At [80] the Appeal Panel said:

If the Tribunal was going to rely on this additional evidence, as it did, the Tribunal ought properly to have given the appellants the opportunity to provide expert evidence or other material in response. Whether the appellants would have done so, or whether there was such evidence available, is not the critical question. The issue is whether the appellants were deprived of a realistic possibility of providing further evidence to the Tribunal that could have changed the outcome. We are satisfied that this is the case and therefore find that this ground of appeal is established.

The original orders were set aside and the matter was referred back to the NCAT for further determination.

From the point of view of readers of this blog, the most significant paragraph is [72] where the Tribunal said (emphasis added):

Under cl 22 [of the contract], the obligation of the respondent to decide whether or not to proceed was an obligation that arose on the morning of the charter, presumably sometime before 12 noon. Section 60 [of the Australian Consumer Law] provides that when fulfilling that obligation, which is part of the provision of the charter service, the respondent was required to use due care and skill. In addition, s 61 [of the Australian Consumer Law] provides that the service must be fit for purpose. As such, the respondent’s obligations under cl 22 were informed by ss 60 and 61 of the ACL. Independently of this, the respondent had an obligation to exercise due skill and care in delivering the service of the charter and this duty was not confined to the obligation to consider whether the charter should proceed on the morning of the charter but included whether weather conditions were safe for the period of the charter. The appellants submitted that the respondent should have had appropriate regard to the advice of other parties such as the information provided by and informing the statement of the Premier. The tribunal found that, under cl 22, the decision to cancel was solely within the remit of the respondent. That is correct. However, the question was whether the respondent did everything it should have done to discharge its obligations, not only under cl 22 but also in accordance with ss 60 and 61 of the ACL.

It will be interesting to see what happens when the matter returns to the NCAT.  The Tribunal will have to consider what obligation was upon the charter operator to have regard to the Bureau’s weather warnings as opposed to their own assessment of the weather risk. That will require an assessment of the weather warnings before the time of the charter and not an assessment of what the situation was at the time the charter had been proposed.

The facts might also suggest lessons for anyone seeking to engage weather critical services, whether that’s a boat charter, a flight charter or a wedding venue. It would be prudent to look into contractual agreements for terms that provide what is to happen in the event of severe weather warnings eg does a rural wedding venue provide that the venue will not operate on days of catastrophic fire weather?  If it does it may ‘cut both ways’.  A wedding party may be frustrated if the venue insists on cancelling their booking, particularly if nothing happens; but another venue may be frustrated if the wedding party cancel the booking. 

Conclusion

In this case the contract made it clear that the decision of whether conditions were ‘unsafe’ was the decision of the charter company, what remains to be tested is how much weight they should have given to the warnings from the Bureau of Meteorology and the Premier.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.