Kenny v Trip A Deal Pty Ltd [2021] NSWCATCD 59

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kenny v Trip A Deal Pty Ltd [2021] NSWCATCD 59 Hearing dates: 27 January 2021 Date of orders: 16 March 2021 Decision date: 04 March 2021 Jurisdiction: Consumer and Commercial Division Before: W Priestley, General Member Decision: 1. Phillip Houghton is removed as an applicant. 2. The application is dismissed. Catchwords: CONSUMER LAW – Australian Consumer Law (NSW) – Consumer claim – Refund – Force majeure – Unfair terms Legislation Cited: Fair Trading Act 1987 (NSW) Australian Consumer Law (NSW) NSW Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Flight Centre Travel Group Limited T/A Aunt Betty v Goel [2021] NSWCATAP 44 Texts Cited: Nil Category: Principal judgment Parties: Seamus Kenny - First Applicant Steven Smethurst – Second Applicant Trip A Deal Pty Ltd – Respondent Representation: Applicant (in person) Respondent (in person) File Number(s): GEN 20/35292 Publication restriction: Nil

REASONS FOR DECISION

Background 1. On 19 January 2019 Seamus Kenny, Philip Houghton and Stephen Smethurst booked tours for themselves, and their partners, through the respondent. The tours were of Canada and Alaska, and included flights on Air Canada, and cruises. The total cost of the tours, including cabin upgrades for the cruise component, was $33,626, which was subsequently paid for in five transactions. There is no dispute that before purchase, the applicants agreed to be bound by the respondent's terms and conditions. The departure date for the tours was 3 June 2020. Due to the Covid 19 pandemic, the tours were cancelled by the respondent. There then followed a dispute between the parties as to what the respondent was required to reimburse the applicants. 2. Messrs Kenny, Houghton and Smethurst jointly lodged an application with the Tribunal on 16 August 2020, seeking an amount of $37,118.51. By the time of hearing, Mr Houghton had resolved his dispute with the respondent, and accordingly was removed as an applicant. 3. The respondent has reimbursed in cash, Mr Kenny and Mr Smethurst, all the monies they paid it, except the cost of three Air Canada tickets, two of which were bought by Mr Kenny, and one by Mr Smethurst. The cost of those fares was $1049.50 each. Instead of reimbursing cash, the respondent has offered a credit in that amount, which can be used by the applicants on a range of its products or on tours to the USA or Canada, with varying terms and conditions, depending on what products or packages are chosen by the applicants. 4. The respondent has also retained administration fees, including $100 for each of the three Air Canada tickets, it has charged for dealing with the cruise operator and Air Canada to obtain the cash refunds and credits form those suppliers. The total of the charges retained by the respondent is approximately $300 for each applicant.