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

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

Trip A Deal Pty Ltd acted as agent, not principal, and was entitled under contract terms (including force majeure and best endeavours) to withhold cash refunds where it could only recover credits from suppliers. The contract did not include unfair terms as they were reasonably necessary to protect the respondent's interests. All applicant arguments were rejected and the application was dismissed.

Parties
Applicant: Seamus Kenny; Applicant: Stephen Smethurst; Respondent: Trip A Deal Pty Ltd; Former Applicant: Phillip Houghton
Jurisdiction
Australia
Judgment Date
04 March 2021
Procedural Posture
Consumer Claim / Principal Judgment
Outcome
Application dismissed
Legal Topics
Refunds, Force Majeure, Unfair Contract Terms, Agency, Frustration of Contract
Consumer Law Contract Law Refunds Force Majeure Unfair Contract Terms Agency Frustration of Contract

Case Brief

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Parties

Seamus Kenny

Applicant

Stephen Smethurst

Applicant

Trip A Deal Pty Ltd

Respondent

Phillip Houghton

Former Applicant

Procedural Posture

Consumer Claim / Principal Judgment

Legal Issues

  1. 1 Whether Trip A Deal Pty Ltd was required to provide a full cash refund to the applicants.
  2. 2 Whether Trip A Deal Pty Ltd acted as agent or principal supplier of the travel services.
  3. 3 Whether terms of the contract were unfair under the Australian Consumer Law (NSW).

Ratio Decidendi

Trip A Deal Pty Ltd acted as agent, not principal, and was entitled under contract terms (including force majeure and best endeavours) to withhold cash refunds where it could only recover credits from suppliers. The contract did not include unfair terms as they were reasonably necessary to protect the respondent's interests. All applicant arguments were rejected and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • Phillip Houghton is removed as an applicant.
  • The application is dismissed.