Kiss v Parsons [2021] NSWCATAP 217

Kiss v Parsons [2021] NSWCATAP 217

The appellant acted only as agent in facilitating reservations with Air Canada and Momento Travel. The Booking Terms and Conditions, together with the respondents' awareness that the appellant would not personally provide the air travel, accommodation or excursions, meant the relevant contracts were between the respondents and the travel providers. Section 12 of the Frustrated Contracts Act 1978 (NSW) did not impose repayment liability on the appellant as agent; any redress was against the travel providers. The Tribunal therefore erred in ordering that the appellant's payment to the respondents be retained and in treating the appellant as liable for the frustrated travel contracts.

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Appeal in a Consumer Claim Concerning Refund of Travel Payments After Cancellation Due to COVID 19 Restrictions / Appeal Panel Review of Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 29 March 2021 and Orders Made on 30 March 2021
Outcome
Appeal allowed; Tribunal orders set aside; financial adjustment ordered in favour of the appellant.
Legal Topics
['travel Agent Liability' 'frustration of Contract' 'refunds for Cancelled Travel' 'incorporation of Booking Terms and Conditions' 'application of Frustrated Contracts Act 1978 (nsw) S 12']
['contract Law' 'consumer Law' 'agency' 'frustrated Contracts'] ['travel Agent Liability' 'frustration of Contract' 'refunds for Cancelled Travel' 'incorporation of Booking Terms and Conditions' 'application of Frustrated Contracts Act 1978 (nsw) S 12']

Case Brief

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Procedural Posture

Appeal in a Consumer Claim Concerning Refund of Travel Payments After Cancellation Due to COVID 19 Restrictions / Appeal Panel Review of Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 29 March 2021 and Orders Made on 30 March 2021

Legal Issues

  1. 1 ['Whether the Tribunal erred in applying s 12 of the Frustrated Contracts Act 1978 (NSW) to make the appellant travel agent liable to repay the respondents.' 'Whether the appellant, in making travel arrangements for the respondents, acted only as agent for Air Canada and Momento Travel and was therefore not personally liable to reimburse the respondents.' "Whether the appellant's Booking Terms and Conditions were incorporated into the contract."]

Ratio Decidendi

The appellant acted only as agent in facilitating reservations with Air Canada and Momento Travel. The Booking Terms and Conditions, together with the respondents' awareness that the appellant would not personally provide the air travel, accommodation or excursions, meant the relevant contracts were between the respondents and the travel providers. Section 12 of the Frustrated Contracts Act 1978 (NSW) did not impose repayment liability on the appellant as agent; any redress was against the travel providers. The Tribunal therefore erred in ordering that the appellant's payment to the respondents be retained and in treating the appellant as liable for the frustrated travel contracts.

Court Disposition

Appeal allowed; Tribunal orders set aside; financial adjustment ordered in favour of the appellant.

Orders

  • ['The orders the Tribunal made on 30 March 2021 be set aside.' 'The Appellant is entitled to receive for its own use the full amount of any refund received from Air Canada in respect of the airfares, being $6,051.68.' 'The Appellant is entitled to receive for its own use the amount of the partial refund received...