In July 2019, a mother and daughter talked to a travel agent about booking a holiday to Canada and Alaska. A quotation was issued and a draft itinerary prepared, the NSW Civil and Administrative Tribunal (NCAT) report for the case read.
When the pair paid, they were told the airfare and other payments (to secure hotel reservations and a railway excursion) were non-refundable. They were told to take out travel insurance in the event of any unforeseen problems arising.
When COVID-19 hit, the mother and daughter could obviously no longer travel. The pair instituted proceedings with NCAT to recover their monies.
In November last year, the travel agent was ordered to pay the mother and daughter the full sum of their travel costs. Which she did — even though the travel providers had offered credits and a partial refund.
So the travel agent appealed.
Last week, the travel agent won her appeal.
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, the client has no recourse to the travel agent.
As such, the Appeals Panel found the money received by the travel agent was received as an agent for the travel providers, and that she had only acted to facilitate the making of the reservations. On this basis, the travel agent was not liable to meet any loss.
“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.”
The Australian Federation of Travel Agents (AFTA), funded the appeal and provided the agent with the support of consumer law expert and former ACCC CEO Hank Spiers.
“Without AFTA’s support and Hank’s considerable assistance and expertise, I wouldn’t have been able to get through this,” the travel agent said.
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.”
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