In an important win for the travel trade, a tribunal panel has ruled that a travel agent was not responsible for refunding clients for a trip that was cancelled due to COVID-19.
The NSW Civil and Administrative Tribunal Appeals Panel has set aside orders that Wendy Kiss of Helloworld Gosford refund a consumer in full for bookings even though the suppliers involved only offered credits and a partial refund.
The refund in question was for a trip to Canada and Alaska that was booked in July 2019 including accommodation, international airfares through Air Canada, services from Momento Travel and a railway tour with Rocky Mountaineer.
The booking, which was made for mother and daughter Carolyn Parsons and Constance Dobb, came to $9,092 in total. However, the trip was cancelled due to travel restrictions resulting from the global pandemic.
Parsons and Dobb instituted proceedings in the tribunal, which ruled Kiss was to pay her clients a full refund in November last year.
The Australian Federation of Travel Agents (AFTA) provided Kiss with funding for an initial appeal and the support of consumer law expert and former Australian Competition & Consumer Commission CEO Hank Spiers to assist with the written submissions for the second appeal.
Citing another similar recent appeal panel decision, the panel highlighted that because the booking terms and conditions made it clear that Kiss was acting as an agent only, her clients could not claim the refund from her.
The appeals panel that the money Parsons and Dobb paid for their booking was received by Kiss only as an agent for the travel providers and that Kiss had only acted to facilitate the reservations.
On this basis, the panel found that Kiss was not liable to meet any loss her clients faced.
“Without AFTA’s support and Hank’s considerable assistance and expertise, I wouldn’t have been able to get through this,” 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.”
According to AFTA chair Tom Manwaring, the appeal highlighted several key recommendations for members.
“Make sure you get and keep a record of acceptance of your terms and conditions before payments are received,” he said.
“Make sure that your T&Cs 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.”
Manwaring said that if an agent finds themselves in the unfortunate position of facing a tribunal hearing, they could now cite Kiss v Parsons if appropriate.
“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,” he said.
Featured image source: iStock/101cats
