Howden, Matthew v Travel Compensation Fund [1997] FCA 1166

Howden, Matthew v Travel Compensation Fund [1997] FCA 1166

By 1 September 1995 everything necessary had occurred to give the Travel Compensation Fund an accrued substantive right to recover its payments from the companies and Mr Howden; that right and the related remedy were preserved by s 30(1) of the Interpretation Act 1987 (NSW). The Court accepted that omissions by the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 September 1997
Procedural Posture
Appeal Concerning Claims by the Travel Compensation Fund Under S 40(4) of the Travel Agents Act 1986 (nsw) / Appeal From a Decision of Lehane J; Ex Tempore Reasons; Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['misleading Conduct by Travel Agents' 'payments Received for Travel Not Provided' 'validity and Repeal of Regulations' 'accrued Rights Under Interpretation Act 1987 (nsw)' 'subrogation and Recovery by Compensation Scheme Trustees' 'whether Company Carried on Business as a Travel Agent']
['trade Practices' 'statutory Interpretation' 'travel Agents Regulation' 'compensation Scheme' 'director Liability'] ['misleading Conduct by Travel Agents' 'payments Received for Travel Not Provided' 'validity and Repeal of Regulations' 'accrued Rights Under Interpretation Act 1987 (nsw)' 'subrogation and Recovery by Compensation Scheme Trustees' 'whether Company Carried on Business as a Travel Agent']

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Procedural Posture

Appeal Concerning Claims by the Travel Compensation Fund Under S 40(4) of the Travel Agents Act 1986 (nsw) / Appeal From a Decision of Lehane J; Ex Tempore Reasons; Appeal Dismissed

Legal Issues

  1. 1 ['Whether a regulation made on 1 September 1995 was invalid because it was not prescribed by reference to a schedule comprising a copy of the trust deed under s 57(2)(b) of the Travel Agents Act 1986 (NSW).' 'Whether the Travel Compensation Fund had an accrued right of action preserved by s 30(1) of the Interpretation Act 1987 (NSW) despite repeal of the 1987 regulations.' 'Whether s 40(4) of the Travel Agents Act 1986 (NSW) applied where the appellant contended there was no relevant act or omission by the travel agents.' 'Whether there was evidence to support the finding that Air Australia Worldwide Marketing Pty Limited carried on business, or held itself out as carrying on business, as a travel agent.' 'Whether proceedings commenced on 5 September 1995 could validly be instituted in the name of the Travel Compensation Fund under s 52 of the Travel Agents Act 1986 (NSW).']

Ratio Decidendi

By 1 September 1995 everything necessary had occurred to give the Travel Compensation Fund an accrued substantive right to recover its payments from the companies and Mr Howden; that right and the related remedy were preserved by s 30(1) of the Interpretation Act 1987 (NSW). The Court accepted that omissions by the travel agents could be inferred from the evidence, namely failure to take steps to ensure travel obligations could be met or money refunded, and no error was shown in the finding that Air Australia carried on business or held itself out as carrying on business as a travel agent. Section 52 permitted the proceedings to be brought in the name of the Travel Compensation Fund. The...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs of the appeal."]