Two ANU students prevented from re-entering the ACT because of COVID should not have any of their claimed on-campus living costs refunded as they knew the pandemic's effects and agreed to bearing the risks of losses, the university's lawyer has argued.
Kate Aston's and Sigourney Vallis' statements of claims filed in the ACT Civil and Administrative Tribunal are seeking orders to declare that the second half of their occupancy agreements with the ANU for on-campus accommodation in 2021 were rendered impossible to be performed because the ACT closed its border and the plaintiffs were locked down in Sydney.
They are also seeking $11,500 in total from the ANU, with $6605 to Ms Aston and the remainder to Ms Vallis.
Among the ANU's arguments is the agreements plainly required the plaintiffs to bear the risk of COVID-related lockdowns and travel restrictions.
It also says its contractual obligations had been fulfilled by allowing the plaintiffs to store their belongings within the rooms during the ACT-NSW border closure in June to November of that year.
The case was heard in the tribunal last Wednesday to Friday.
Prue Bindon, barrister for the ANU, in her closing submissions argued frustration of contract, the legal doctrine that means a contract is rendered impossible to be performed because of unforeseen events making it radically different to when the parties originally contemplated it, was not established.
Ms Bindon said the effects of COVID were foreseeable, even if they were only general ones and not "particular manifestations".
"Both applicants in cross-examination conceded they knew the risk and they took the risk to not come back," Ms Bindon said.
She said if frustration were made out, it was because of the plaintiffs' own actions and them agreeing to bear the risks of losses as the contracts had clauses that "very clearly in several areas" passed such risks onto the plaintiffs.
"The dictates of justice in this case do not warrant the tribunal moving the allocation of risk under the contract when the fact of COVID was understood by the parties at time they entered the contract," she said.
Ms Bindon said the length of time the plaintiffs were unable to re-enter the ACT was no different to regular winter breaks because the plaintiffs were able to return in November. "Temporary frustration is not known to the law," she said.
Steven Whybrow SC, barrister for both the plaintiffs, in his closing address said the potential of the ACT closing its border should be considered at the time the agreements were entered into, being December 2020.
Mr Whybrow said the "supervening event" was not foreseen because the university had confidence in offering "take it or leave it" occupancy agreements that had no clause about specific COVID effects.
He said the university had the negotiating power and could have included such a clause that "would have insulated the ANU from claims such as these".
Mr Whybrow said the plaintiffs showed "a degree of ingenuity and lateral thinking" to try to legally return, including the inquiry to quarantine at an Airbnb.
Ms Vallis was rejected twice in applying for an exemption while Ms Aston did not apply, which Mr Whybrow said was simply because she knew she did not meet the criteria.
The plaintiffs, who agreed to the contracts in December 2020, said the pandemic making their contracts impossible was through no fault of their own as they tried their best to follow the changing health orders and university directions to return.
They say they contacted the hall to obtain a rent freeze, obtain a refund, or end their occupancy agreements but were refused.
After trying to then terminate their contracts, they were told all students were advised before they signed their occupancy agreements that they would still be liable for costs if they were unable to use their rooms because of a public health direction.
The plaintiffs say no such advice was given before signing their agreements.
Ms Aston in September cancelled her direct debit payments to the hall but two months later received a backdated charge for $2450.
Her cancellation meant a "negative service indicator" was placed on her account and prevented her from receiving grades or enrolling in courses until that debt was paid.
Geoff McCarthy and Kristy Katavic, presidential and senior members of the tribunal, have reserved their decision.
Kathryn Lee, ANU Student Association solicitor who has carriage of the cases, told The Canberra Times "these two students are the tip of the iceberg".
