The Australian Federation of Travel Agents today flagged key takeouts from an important decision for travel agents from the NSW Civil and Administrative Tribunal Appeals Panel.
The Appeals Panel’s decision was to set aside orders that travel agent Wendy Kiss of Helloworld Gosford, refund a consumer in full for bookings even though the travel providers, Air Canada and Momento Travel, had offered credits and a partial refund.
AFTA funded Ms Kiss’ initial Appeal against NCAT’s decision that the contract was frustrated and provided Ms Kiss with the support of well respected Consumer Law expert and former ACCC CEO Mr Hank Spiers to assist with the written submissions for the Second Appeal.
The Appeals Panel considered two issues: agency and frustration.
Citing another similar recent Appeal Panel decision, the Panel highlighted that where a travel agent accepts payment as agent only and the booking terms and conditions make that plain when travel arrangements are made between the client and the agent, the client has no recourse to the travel agent. As such, the Appeals Panel found the money received by Ms Kiss was received as an agent for the travel providers, and that Ms Kiss had only acted to facilitate the making of the reservations. On this basis, Ms Kiss is not liable to meet any loss. Given this, the Appeals Panel found the Tribunal erred in its application of the Frustrated Contracts Act 1978 (NSW) and Ms Kiss was not liable to the consumers.
“Without AFTA’s support and Hank’s considerable assistance and expertise, I wouldn’t have been able to get through this,” Ms Kiss said. “I understand that consumers get frustrated and want their money back but it’s not the travel agent sitting on the money that is the problem. I felt I had to keep appealing given the principle of the matter and the flow-on ramifications for my agency and every other agency if we didn’t get a fair and reasonable outcome.”
AFTA Chair Tom Manwaring said there are several key recommendations for members.
“Make sure you get and keep a record of acceptance of your terms and conditions before payments are received. Make sure that your T&C’s include 1) that Rules and Restrictions apply; 2) that you as an agent are not liable for any loss or damage suffered in connection with the non-delivery of a travel product; or 3) that you are not liable for any breach of obligations by any third party travel provider.”
“If you find yourself in the unfortunate position of facing a Tribunal hearing, make sure you cite Kiss v Parsons if appropriate. AFTA will continue to support Tribunal applications and responses selectively and strategically in order to shape the legal landscape within which we operate. While Tribunal decisions aren’t binding on the courts, this is an important outcome and we are very grateful to Wendy for her resilience, persistence and tenacity. ”
“AFTA will continue to work on guidance in relation to T&C’s for agents, and this and other decisions are important in clarifying what that advice should exactly be”.
The Appeals Panel’s decision is available here:
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Notes for Editors;
The Australian Federation of Travel Agents (AFTA) is the peak body in Australia representing the retail travel industry. Founded in 1957, AFTA represents the majority of travel agents in Australia and includes all of the major travel agency groups.
AFTA is supporting the travel agency community, travelling public and travel suppliers to the best of our ability during this COVID-19 pandemic.