Agent wins NCAT appeal

from the Australian Federation of Travel Agents

WENDY Kiss, a Helloworld Travel agency owner from the NSW Central Coast, has been successful in challenging a decision by the NSW Civil and Administrative Tribunal (NCAT) which had previously ordered her to refund a client who had booked a trip to Canada.

The initial ruling in late Mar this year related to a booking made in Aug 2019 including nonrefundable Air Canada airfares and hotel reservations made via wholesaler Momento Travel.

The Tribunal had judged that based on the Frustrated Contracts Act and the Government’s COVID-19 travel bans, the agent was liable to pay the refund even though the suppliers in question had not repaid the bookings.

Kiss complied with the order and paid more than $9,000 back to the customers, but also appealed the decision in Apr.

In last Fri’s ruling, the Appeals Panel confirmed that contrary to the earlier ruling, “in making the arrangements for travel for the respondents, the appellant [Kiss] was acting only as agent (on behalf of Air Canada and Momento Travel) and is therefore not personally liable to reimburse the respondents”.

The panel cited the agent’s booking terms and conditions which made it clear that she was to provide booking and advisory services only to allow the clients to acquire travel products from third party providers, and noted clear communication that airfares and accom were non-refundable.

The previous ruling was set aside, with AFTA, which had supported the appeal, hailing Kiss’ “resilience, persistence and tenacity”

IN THE midst of all the madness, it feels even more important than ever to celebrate the wins.

The very welcome decision last Fri from the NSW Civil and Administrative Tribunal Appeals in Kiss v Parsons is very much the result of resilience, persistence and tenacity of travel agent Wendy Kiss.

She decided to appeal an initial decision of the Civil and Administrative Tribunal that she refund a client following cancellation of air travel by Air Canada and related holiday bookings with Momento Travel as a result of COVID-19 restrictions.

The decision highlights two key legal areas that have dominated the cancellation and refund space during COVID-19: agency and frustration.

The travel agency’s Terms and Conditions made it very clear that it acts as an agent for the Third Party Travel Provider and that the Third Party Travel Provider is liable to the client for the Travel Product.

AFTA happily supported the initial appeal against the NCAT decision that the contract was frustrated and that it was Wendy’s responsibility to refund the client.

Providing support in this way is always a decision that the Board takes very seriously.

Our focus in doing so was to reinforce the reality of the role of the travel agent in the travel payment ecosystem and to make sure that travel agents are not unfairly and inequitably burdened.

It’s definitely worth reading the full decision https://www. caselaw.nsw.gov.au/decision/17a a36235b7d6540ea850089.

We also pay tribute to Wendy for her commitment to seeing this through to a second Appeal and achieving this result.

We are proud to have been a part of shaping the outcome.

As announced post AFTA’s AGM last week, high on the priority list will be a review of both AFTA’s Constitution and the ATAS Charter to make sure we are where we need to be.

We will continue to keep members updated.

These are just some of the priorities which new AFTA CEO Dean Long and the Board have on our list.