At the time of writing I personally have attended four court mediation sessions, and two court hearings. Theses are my stories. Dum dum. Ok, enough of the Law and Order jokes, but I am in the middle of a bunch of law suits and I figured that you, my fellow celebrants, would like to hear the stories, and hopefully you can learn from them.
What follows is in no way to be considered legal advice, I am not a lawyer, and the advice given to me by my lawyer is confidential. The stories shared are personal anecdotes that would hopefully encourage you to engage with a lawyer.
As an introduction to the stories, I want to note that my wife, Britt and I, run two brands/businesses under the same business structure. Our business is structured as a family trust and all of our work is invoiced from that trust. One of the businesses is what we still internally call “Married By Josh” which is the kind of business you’d be familiar with, that of being a celebrant at weddings. The other is our brand “The Elopement Collective” where we put me in with a photography, videography, florals, and elopement planning package.
The complaints have all been around the idea that because of the covid-related lockdowns, travel bans, and gathering restrictions, the original plans can’t go ahead. The couples want a refund, I want a rescheduled date.
Both of the the two court cases have gone in the same direction, not in my favour. That is that the judge has heard both party’s sides of the story and awarded partial refunds to the couple. The couples have been very sure to bring up my early in March 2020 optimism about how Covid wouldn’t impact on their plans (like any of us knew better) and then they did not want to proceed with a local elopement. One was an Australian couple who had booked us for a New Zealand elopement, and the other was a couple from Australia booked for an Italian elopement. The New Zealand couple I had already legally married according to Australian law, and the Italian couple have seemingly broken up.
In both cases the judge has decided that our contracts were frustrated, and according to Australian law that basically means the contracts are flushed down the toilet and the parties to the contract are ejected from their responsibilities to the contract. The judge then has to look at the whole situation and basically decide if anyone has been unjustly enriched, which basically means, has someone got too much money here.
The position the judge takes is that of the “common man” or as my most recent judge took, the position of “the man on the 3pm bus”, which is a modern take on an ancient common law hypothetical, “Man on the Clapham omnibus”.
And apparently the man on the 3pm bus doesn’t think a local rescheduled wedding is the best path forward, he thinks a partial refund is required. Which is fair, but it’s not what my bank account wanted to hear.
The man on the 3pm bus also understands that the word deposit is more like a placeholder payment, unlike the payment of a booking fee, and changing from deposit to booking fee is advice that our resident lawyer, Kathryn from Event Law has been giving publicly so I don’t mind quoting her here.
The judge did take into account costs already spent on the elopement packages but only by half. Apparently paying a photographer a fee earlier than the elopement is considered silly so the judge awarded me 50% of that fee.
As for the mediations, they’re frustrating, all but one has been fruitful, and the fruitful one was where I offered a 50% refund. I’ve got one coming up where I have already refunded half despite becoming re-available for their wedding, but they’ve got hurt feelings, so they’d like a full refund. My future mediation hearings will be influenced by my two court hearings, and I’ll go in knowing that a refund will be due.
Words you’ve probably seen bandied about recently are “Force Majeure”. Most of our contracts, if we had a contract to begin with, would not have had a Force Majeure clause because who amongst us was planning for a pandemic?
My understanding of the clause is that something like a pandemic can frustrate a contract, and then we have to wait for the guy on the bus to decide how things roll out, but if you have a Force Majeure clause that references a Force Majeur event – an event that is beyond the control of either party that prevents or hinders the delivery of the contract – then the contract isn’t frustrated, but instead it’s put on hold until after the event. Sounds like a grand idea to me. Get onto a new contract, and an Australian one. I see so many wedding creatives using contracts from American websites – bad idea.
So my advice after all this?
- Have a service contract between you and your clients. You can buy ours if you want to be cheap, but the best advice is to get one through Event Law, or a lawyer of your choosing.
- Write all of your emails knowing they could be printed in a newspaper, screenshot in a Facebook group, or shown to a court.
- Get off the phone and into an email. The records are important.
- Deploy compassion, empathy, and kindness whenever you can – and if you can’t, close the laptop and go for a walk.
- Learn more about consumer law, we’ve got seven workshops on consumer and contract law for celebrants left before the end of the year, and as an added bonus, they contribute two hours to your OPD commitment.
- Try to work it out in mediation, court’s not as fun as they make out on TV.