Ford vTripADeal Pty Ltd

[2021] NSWCATCD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ford vTripADeal Pty Ltd [2021] NSWCATCD 57

Hearing dates:

28 October 2020

Date of orders:

14 January 2021

Decision date:

14 January 2021

Jurisdiction:

Consumer and Commercial Division

Before:

W Priestley General Member

Decision:

1.Leave is granted for the applicants to amend their claim to seek compensation of $11,160 and costs of $1600.

2.The application is dismissed.

Legislation Cited:

Fair Trading Act 1987 (NSW)

Australian Consumer Law (NSW) 

Category:

Principal judgment

Parties:

Edilia Ford (First Applicant)
Geofrey Ford (Second Applicant)
TripADeal Pty Ltd (Respondent)

Representation:

First and Second Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

GEN 20/28046

Publication restriction:

Nil

Reasons for Decision         

The application

1. By application lodged 29 June 2020, an order is sought the respondent pay compensation to the applicants in the amount of $8174.22.

2. The application states the bases of the claim, are that the respondent engaged in misleading and deceptive conduct, and the services provided by the respondent were not fit for purpose. Those bases were expanded upon after the application was lodged, to also include negligence, and a failure to comply with the guarantee provided by section 60 of the Australian Consumer Law (ACL), and appear at page 113 of the applicants’ folder of documents. Although the applicants did not specifically allege the respondent had breached the terms of the contract between the parties (other than section 60 ACL, and an implied term that the respondent would not negligently perform its obligations under the contract), that issue is also dealt with in this decision.

3. The amount claimed for compensation in the application, is calculated on the basis the value of a tour package the applicants’ purchased from the respondent, was 38% of the $7,674.99 they paid for it (a loss of value of $4,758.49), plus $3,315.73 in extra airfares they say they should not have incurred, plus $100 loss of an unused prepaid seat allocation. At a conciliation hearing on 25 August 2020, the applicants sought to amend the claim to seek $11,160, being a full refund of the purchase price plus the transaction costs, and the cost of 2 single flights from Budapest to Sydney ($3,315.73) which they bought to return home, rather than wait for the respondent to arrange return flights for them. The applicants also claimed costs of $1600, being 60 hours of their time at $25 per hour, in preparing their case, and $100 for postage and photocopying. The Tribunal did not grant leave at either the conciliation hearing or final hearing, for the applicants to amend their claim, but as there is no prejudice to the respondent in doing so, leave for the claim to be amended in that way is now granted.

4. The application relates to travel services provided by the respondent, namely the arranging of holidays, including flights, accommodation, and tours. The respondent’s offices are in Byron Bay NSW, and that is where the services were provided. The applicants are consumers, and the respondent is a supplier, as those terms are used in the Fair Trading Act NSW. The application is a “consumer claim” as defined in section 79E of that Act, and the Tribunal has jurisdiction to hear and determine it under section 79J.

Evidence

5. Both parties relied on folders of documents they provided to the Tribunal and each other. The applicants’ documents included an unsigned statement made by Mrs Ford (pages 3 – 5 of the applicants’ documents) which was adopted by her at the hearing, emails between the parties, a chronology of significant events, statutory declarations from people who travelled on the same tour as the applicants, a statement from a person who booked on the same tour, but cancelled because of her concerns about coronavirus, a statutory declaration from a person who went on a similar tour that departed on 7 March 2020, a statement from a guide who was to conduct part of the tour, a document that appears to be a translation of part of an undated decree of the Italian President of the Council of Ministers, and a case summary.

6. The respondent’s documents included the terms and conditions that applied at the time the applicants purchased the tour, email correspondence, a detailed response to the various assertions made by the applicants, copies of social media postings, and a chronology.

7. Oral evidence was also given by Mrs Ford, Ms Knapp and Mr Cowan at the hearing, which was conducted by telephone due to Covid-19 restrictions.

Findings of Fact

8. On 4 September 2019, the applicants paid the respondent $7,599.99 for an 18 day “2 for 1” tour of Europe. Payment was made by credit card, and the cost of the transaction was an additional $75.99. The respondent paid $,7599.99 (presumably less some portion which was retained as a fee, commission or profit on the transactions, and which is not disclosed on the evidence) to suppliers of the travel service such as Emirates Airlines, Costa Cruises, and an organisation called “Podium”, which supplied the land services. Under the contract between the parties, those travel services were procured from the suppliers, on behalf of the applicants, by the respondent.

9. The tour was to include return flights, transport between various European cities, hotel accommodation, and a cruise with Costa Cruises. Departure was scheduled from Sydney on 10 March 2020 at 9.45 p.m.

10. The tour was paid for by Mrs Ford. Prior to making payment on-line, Mrs Ford checked the box on the respondent’s website page, acknowledging she had read the terms and conditions of the contract between the applicants and the respondent, and agreed to them. Ms Ford confirmed this under cross-examination. One of those terms, is that the consumer acknowledges she is bound by the terms and conditions of the suppliers, from whom the respondent purchases the travel products for the consumer. Mrs Ford said she could not be bound by those terms, as the suppliers terms were not provided to her at the time of payment on 4 September 2019. However, the actual suppliers’ terms, were provided approximately six weeks before departure, when the applicants received the respondent’s “travel pack” (un-contradicted oral evidence of Mr Cowan). In my view, on receipt of those additional terms, it was open to the applicants to advise the respondent within a reasonable time, they did not agree to them, and rescind the contract. Such a course would have entitled the applicants to a refund of the purchase price of the tour. The conduct of the applicants in not rescinding the contract within a reasonable time of receipt of the additional terms, indicates their acceptance of them. Alternatively, the applicants could have chosen not to accept the terms and conditions, which were offered by the respondent, prior to purchase. In my view the applicants are bound by those terms, and have recourse against those suppliers, if the suppliers have breached those terms.

11. On several occasions before departure, Mrs Ford telephoned the respondent to enquire if the tour was proceeding. Attachment 2 to Mrs Ford’s statement is a call log of such telephone calls. It is not explained how that log was produced, but it was not challenged by the respondent, and I accept Mrs Ford’s unchallenged evidence that she made calls to the respondent as recorded on the log. Those calls were made on 25 February 2020 (1 minute 15 seconds), 3 March 2020 (1 minute 53 seconds), 9 March 2020 (1 minute 2 seconds), and another on 10 March 2020 for 56 minutes. Mrs Ford says that “TripaDeal assured us that we were safe to travel when we were not on 9/3/2020 and 10/3/2020”, and that she was “assured by TripaDeal that it was ‘a media exaggeration and their people on the ground in Europe assured them it was safe for passengers to travel’ ”. That evidence is accepted

12. On 9 March 2020, at an unspecified time the Australian Government Smart Traveller website posted an advice advising Australians to “reconsider cruising at this time”.

13. On 9 March 2020 at 6.11 p.m. the respondent sent an email to the applicants, and others on the same tour, advising;

“We hope you’re looking forward to your upcoming holiday. Due to the ongoing Coronavirus issue (CoVID-19) issue, we understand that you may be feeling some concern about travelling, however please rest assured that we’re monitoring the issue at all times.

We’re getting in touch to advise that due to issues outside our control, a change has been made to your itinerary which means you will no longer be visiting Venice. (emphasis in original)

As you’re aware, the alert level for Covid-19 declared by the World Health Organisation (WHO) has led to several countries taking precautionary measures. The Italian Government has actioned such measures by imposing restrictions for the city of Venice. Based on the latest alerts stipulated by the WHO and the advice of the Italian Government, we’ve updated your itinerary to include Florence instead of Venice. This also means you’ll be spending a night in Florence, Italy and your tour leader will be sharing the hotel information with you on tour. There is no cost associated with this change.

What this means for you

You will travel from Ljubljana, Slovenia straight through to Florence, Italy on Day 8 of your tour.

You will stay the night in Florence, Italy and your tour leader will provide you with the details of your hotel in Florence.

On day 9 of your tour you will have a half day city tour in Florence before travelling onwards to Rome where you will continue your tour as planned.

Please note that there has also been a change to your hotel in Rome, Italy for the night of 18^th March. Your new hotel is as follows; (omitted)

We understand that Venice is a bucket list destination and this change may cause you some frustration, however we hope that you can appreciate that this update has been made out of necessity. We are grateful for your understanding while we work hard to ensure the impact of CoVid-19 to you is minimal. We hope you have an incredible holiday.

We advise clients to monitor DFAT. See TAD T&C.

We recommend that you contact DFAT or visit their website for current advice. You can also register your plans with DFAT so you’re easily contactable in case of emergency. TripADeal does not provide any medical advice.”

14. On 10 March 2020 at 11.30 a.m. the respondent sent an email to the applicants, and others, advising;

“The Italian Government has recently upgraded its travel restrictions. As we are doing with all of our tours, we are taking advice from the Australian government’s Smart Traveller website and as we send this email, there is no restriction of travel to Italy. Neither your airline carrier nor Costa Cruises have announced any changes so, at present, your tour is still going ahead as planned. We are working on this around the clock and we’re constantly liaising with our operators.

We understand the uncertainty you must be feeling right now. Please be aware that our resources are focused entirely on managing this situation. You will receive updates via email from our customer service team as soon as we receive them. Please check your email regularly for these updates as you will be the first to be informed of developments. Until we are able to provide you with more information, please proceed with your travel arrangements as planned.

If you would prefer to cancel your booking, please notify us via email urgently. If this is your preferred course of action, we recommend liaising with your travel insurance provider as soon as possible.”

15. At about 4.30 p.m. on 10 March 2020 the Australian Government updated its advice on the “Smart Traveller” website in relation to Italy (page 86 of the applicants’ documents). The update advised the warning about travel to Italy overall had been updated to Level 3 ‘Reconsider your need to travel’. In relation to several regions of Italy, the advice had been upgraded to Level 4 ‘Do not travel’. The regions of Italy in which Rome and Florence are located (Lazio and Tuscany) are not mentioned in the Level 4 warning. Part of the definition of Level 3 is that “there are serious and potentially life threatening risks. This can make the destination unsafe for tourism and unsuitable for most travellers”. The travel warning is not a restriction or prohibition on travel. At the hearing, in response to a request by the Tribunal to clarify the effect of a Level 3 warning, Ms Knapp advised it was common for people to travel to countries to which such a warning applied.

16. The applicants departed Sydney on 10 March 2020 at 9.45 p.m. to Budapest, via Dubai. The un-contradicted evidence of the respondent, is that at the time of departure, Costa Cruises had not cancelled the cruise component of the tour, and Emirates had not cancelled the return flight from Rome to Sydney (page 8 of the respondent’s document refers).

17. Mrs Ford asserted that the land component of the tour, involving trips to Venice and Rome, was cancelled before her flight departed Brisbane. Mrs Ford further asserted that TripADeal knew Rome was in lockdown before she departed for Budapest, and that TripADeal concealed this from her. In support of this assertion, Mrs Ford relies on a statutory declaration of a Peter Watson, declared 28 August 2020, an undated unsworn statement from a Linda Cavicchi who was the guide for the applicants’ tour, and what appears to be an English translation of a decree of the Italian President of the Council of Ministers.

18. Mr Watson sets out his experience of a different tour he purchased through TripADeal that arrived in Rome on 7 March 2020. He describes how on 9 and 10 March 2020, the streets of Rome were largely deserted, and restrictions on people’s movement were in place. He does not say exactly what those restrictions were. He does not say Rome was in “lock-down” before 9.45 p.m. on 10 March 2020 Australian Eastern Summer Time. He does say, that on the morning of 11 March 2020 “we were confined to our hotel with the only travel outside being for food and medicine”. I infer that was the time when Rome was put into lockdown. As the respondent points out, the morning of 11 March 2020 in Rome, was the evening of 11 March 2020 in Brisbane, which was after the applicants departed.

19. The statement from Ms Cavicchi does not take the matter any further. She does say “the whole of Italy was declared a red zone on March 9” and that she went from Bologna to Rome and then to Budapest on 10 March, where she met the applicants and the other members of the tour on 11 March. Ms Cavicchi does not say what she means by “red zone”, whether it constitutes a lock down, and if so how it was that the members of Mr Watson’s tour were able to walk around Rome until the morning of 11 March, or how she was able to travel through Rome and then to Budapest. In response to Ms Cavicchi’s statement, the respondent relied on an unsworn statement dated 24 August 2020 from a Cristiano Ascari, the CEO of Podium, which was to supply the land component of the tour. Mr Ascari’s statement refutes the (irrelevant) criticisms of the tourist industry made by Ms Cavicchi. Mr Ascari’s English is not perfect, but he makes the point that, at least in his view, it was not possible to predict at the start of the applicants’ tour, that the virus would have the devastating effects that have eventuated. In the third last paragraph of his statement he says “The day this trip started in Italy, and in Europe, the issue was so new and unexpected that anybody (sic, presumably “nobody”) could say if in coming weeks something else would happen, or if life could go back to a normal standard”.

20. The decree of the President of the Council of Ministers does not tend to prove the assertions made by the applicants. Only what appears to be the first page of the document has been provided. In the absence of the remaining pages it is impossible to understand its effect. That document is preceded by what appears to be a screenshot of a page from an Italian Government website. The page reads that the Italian Prime Minister signed “the Dpcm 9 March 2020 containing new measures for the containment and contrast of the spread of the Covid-19 virus throughout the national territory. The provision extends the measures referred to in art. 1 of the Dpcm 8 March 2020 to the whole national territory. It is also forbidden any form of gathering of people in public places or places open to the public. Lastly the letter d of article 1 of the Dpcm of 8 March 2020 relating to sporting events is amended. These provisions take effect from 10 March 2020 and are effective until 3 April 2020.” Presumably “Dpcm” means the decree of the President of the Council of Ministers. Without the complete decree, it is not possible to know what is being referred to. Further there is no evidence of when the decree was made publicly available, such that the respondent could be expected to be aware of it. Mr Cowan, on behalf of the respondent said he understood the decree to relate to a lockdown of the Lombardy region. The decree does not support Mrs Ford’s assertion that the respondent knew, or ought to have known, that Rome was or would be in lockdown, not long after she and her husband left Sydney.

21. There is no evidence that TripADeal knew, in advance of the tour the applicants commenced on 10 March 2020, that Rome or Italy would so soon be in lockdown, nor that the Costa cruise would not proceed. Furthermore, there is no evidence it was unsafe for the applicants to depart Australia when they did.

22. The applicants arrived in Budapest on 11 March 2020. That was the day the World Health Organisation declared that Covid-19 was a global pandemic (page 7 respondent’s documents). Whilst the applicants were en route, the respondent sent them, and other members of the group they were with, an email which read:

“Dear Travellers,

We hope you enjoyed a safe journey to Europe. Since you departed Australia yesterday, there have been major updates to the evolving coronavirus situation and unfortunately, these have impacted your tour. We are writing to inform you of these updates and to advise of the impact they have on your planned tour.

The latest update

The Italian Government has imposed travel restrictions that are impacting your tour.

The Australian Government has just announced that all Australians returning from Italy must self-isolate for 14 days after returning home from 6.00 p.m. AEDT Wednesday 11 March 2020.” The email then goes on to advise that Munich will now be visited instead of Italy, the 7 day cruise has been cancelled, the tour will now be only 11 days not 18 days, departure to Australia will be from Munich on 18 March and flight details will be advised later, and a credit can be obtained for the cancelled cruise.

23. On 13 March 2020, Mrs Ford sent an email to the respondent, advising she had heard nothing further from it, and did not know when or how she could get home. Mrs Ford also requested a full refund of the price of the tour. That email was replied to on behalf of the respondent by “Frederique”, who essentially said the respondent was not liable under the terms of the contract between the parties, to offer any recompense, other than the options put to it by its suppliers. The email then says “TripADeal has not cancelled your booking and broken a contract, your booking was declared unable to be completed due to the current pandemic and travel restrictions. This unfortunate situation falls under a Force Majeure where your legal right are against those suppliers.” Mrs Ford replied to that email in terms that are of no legal consequence.

24. On 14 March 2020, the respondent emailed the applicants and the others on their tour. The email advised the respondent was “aiming to rebook your flights home departing from Budapest on Monday 16^th March, this may carry over to Tuesday the 17^th March depending on flight availability”. (The email is attachment 6 to Mrs Ford’s statement.) The respondent also advised it would “absorb” the cost of additional nights accommodation in Budapest (which it did), and any difference between the cost of the original return flight from Rome, and the return flight from Budapest. In my view, the latter representation, on a fair reading, is not one which might mislead a reasonable member of its target audience, namely the participants of the tour that Mrs Ford was engaged in, to believe that the respondent would reimburse the cost of a return flight booked independently of the respondent. On an objective basis, I find the representation means that the respondent will pay, or “absorb” any such difference on flights that it arranged, and no reasonable member of the touring party would interpret it in the manner contended by the applicants.

23. On 15 March 2020, the respondent advised the applicants, by email, that many airlines were rapidly cancelling schedules, and that many travellers were starting to find ways home independently. Further, that while the respondent would continue to assist, many people were having more success in going directly to the airline from the country they were in, and that it was a “race against time”. The respondent then gave a list of international airline contact numbers for some 17 airlines. Having received that email, and having had no flight home booked by TripADeal, the applicants arranged their own flights home from Budapest via Dubai at their own cost. The flight departed on 15 March 2020 at 3.15 p.m. The cost to the applicants was $3,315.73. The applicants assert the email constituted advice from TripADeal that it would not arrange flights home for them, and that TripADeal had abandoned them. I do not agree with the applicants’ interpretation of that email. On any reading of that email, it is stating the respondent was attempting to arrange flights home for the applicants on 16 or 17 March, the situation was urgent, and implies that given the urgency, the respondent may not succeed in doing so, and the applicants may wish to use their own endeavours to source flights home.

24. On 15 March 2020, the applicants flew back to Australia from Budapest on the flights they had booked and paid for themselves.

25. There then followed numerous emails from Mrs Ford to the respondent, requesting a full refund of the cost of the tour.

26. Much email correspondence passed between the parties after the applicants returned to Australia. Most of it consists of various complaints Mrs Ford makes about the respondent’s lack of customer service, its failure to respond to her queries, and her demands for a full refund.

27. The respondent has offered the applicants two options in regard to reimbursing the applicants for some of the costs of the tour. The respondent contends these options are as a result of its negotiations with the suppliers of the travel services, in accordance with its “commercial reasonable efforts to minimise loss” obligations, contained in the terms and conditions of the contract between the parties. Option one is a credit for the unused land and cruise components of the tour ($4,506.30), and a cash refund for the unused flight from Rome to Australia ($797.53). Option 2 is a credit for the land component ($3040.30) and a cash refund for the unused flight and cruise of $2263.54. The total value of either option is $5,303.84.

28. I note from the email correspondence between the parties, that the offers of partial reimbursement made by the respondent have improved, as it manages to obtain improved offers from the suppliers. It is reasonable to assume those offers might improve further still.

The relevant terms and conditions of the contract

31. The relevant terms and conditions appear at pages 14 to 37 of the respondent’s documents. Clause 34 is headed “ Limitation of Liability” and relevantly reads;

“…. We act as your agent in making such limited arrangements, bookings, ticketing with Suppliers who provide the relevant travel products and services to you……………..Travel offers provided are subject to the Suppliers’ terms and conditions and limitations…….Specifically, if for any reason (excluding negligence on our part) any Supplier is unable to provide the travel products and services that you have purchased, your rights are against that Supplier and not against TripADeal. This includes where travel products and services cannot be supplied or itinerary changes occur due to force majeure or other events which are beyond our control including but not limited to severe weather, fire, floods, acts of God, acts of government…….”

32. Clause 35 is headed “Responsibility” and relevantly reads;

“TripADeal reserves the right to vary, withdraw or cancel any products and services by written notice in the event they cannot be supplied or the itinerary is changed due to force majeure or other events which are beyond our control including but not limited to severe weather, fire, floods, acts of God, acts of government or other authorities, failure of equipment or machinery, war civil disturbance, strikes and malevolent acts.

To the maximum extent permitted by law, except where caused or contributed to by negligence on our part, TripADeal is not and does not accept any liability in contract, tort or otherwise for any … loss….arising from …the acts of Suppliers or other third parties including government authorities……or……force majeure or other events which are beyond our control including but not limited to severe weather, fire, floods, acts of God, acts of government or other authorities, failure of equipment or machinery, war, civil disturbance, strikes and malevolent acts.

……. (several paragraphs omitted)

We will make commercial reasonable efforts to avoid and mitigate the adverse effects resulting from such events beyond our control.”

Has the respondent breached its contract with the applicants?

33. In my view the covid-19 pandemic falls within the meaning of “force majeure or other events which are beyond our control….” In clauses 34 and 35. Although the covid-19 pandemic is not an event specified in that clause, it is a “force majeure” event in that it is something unforseen and beyond the control of either party, of the same kind as fire, floods, acts of God, and the other events that are specified in that clause.

34. There were two inter-related reasons why the applicants’ tour was initially altered, and then cancelled. They are the covid-19 pandemic, and the acts of governments in responding to the pandemic. Initially the tour was altered by substituting a visit to Florence in lieu of Venice, when governments imposed restrictions in response to the pandemic. As the virus spread, and before the applicants had even left there first destination, Budapest, the tour was cancelled. The respondent was entitled under clause 35 to do initially alter the tour, and then advise it had been cancelled. Pursuant to that clause it was then required to make commercial reasonable efforts to avoid and mitigate the adverse effects resulting from such events. All the evidence is that it has done this, by negotiating with the suppliers of the travel services to recover what it can on behalf of the applicants. The respondent was also attempting to re-schedule the applicants’ return flight from a departure from Budapest, instead of Rome, when the applicants managed to book their own flight home from Budapest.

35. In my view there has been no breach of contract by the respondent.

The other bases of the applicants’ claim

36. The applicants set out the bases for their claim at page 113 of their documents. They can be relevantly summarised as;

• negligence,

• a failure to comply with the guarantee provided in section 60 of the Australian Consumer Law (“the ACL”), that services will be provided with due care and skill, and that such failure was a “major failure”,and,

• false or misleading conduct contrary to section 18 ACL.

37. Regarding the claim of negligence, the applicants alleged the Respondent owed them a duty of care. The scope of the duty was alleged to encompass an obligation not to send them on a trip that was unsafe. It was further alleged the duty was breached because the respondent did not cancel the trip before they left Australia. Further, the applicants claimed the respondent knew or ought to have known, the tour would be unsafe, because it knew or ought to have known Rome would be in lockdown shortly after they departed Australia. Those claims must fail because of the findings of fact the Tribunal has made.

38. The applicants claim the respondent engaged in false or misleading conduct has two aspects. First, it is contended the respondent knew Covid-19 would quickly close down Italy and other parts of Europe after 9 March 2020, and concealed this from them. Had the respondent revealed this, the applicants would have cancelled the tour. As the allegations about the respondent’s state of knowledge have not been made out, that claim must fail. The second aspect of the applicants’ claim about false and misleading conduct, relates to the respondent’s advice about it arranging return flights from Budapest. That claim also fails because of the findings that have been made, as does the claim that there was a major failure by the respondent in complying with section 60 ACL.

39. As mentioned above, the respondent has not breached its contract with the applicants.

Conclusion

40. There is no doubt the applicants endured a stressful time in Budapest, and suffered a significant loss in that they received very little of the tour they were expecting to enjoy. What was anticipated to be a trip of a lifetime to some of the world’s iconic cultural and historic places, turned out to be anything but that. However, that is not the fault of the respondent. Rather it is due to the unforeseeable events of the covid-19 pandemic and actions by various governments in response. The applicants and the respondent entered into a contract that deals with what happens in such an unlikely and unfortunate event. The respondent has complied with that contract, has not acted negligently, nor breached any of the provisions of the ACL.

41. The respondent continues to comply with its contractual obligation, to make commercial reasonable efforts to avoid and mitigate the loss suffered by the applicants as a result of Covid-19, and there is no need to make an order that it provide the options it has made available, and are still available to the applicants. It may also be that those options have improved since the hearing.

42. Accordingly the application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 August 2021