Kenny v Trip a Deal Pty Ltd

The case of Kenny v Trip a Deal Pty Ltd involved an application by Kenny to the Federal Court for a refund under the Australian Consumer Law (NSW). The dispute centred on a contract for travel services which Kenny claimed were not delivered as promised, resulting in a claim for a refund. The respondent, Trip a Deal Pty Ltd, argued that the contract contained a force majeure clause which excused their performance, and that certain terms in the contract were unfair.

The legal issues before the court were whether the force majeure clause excused the respondent from providing the contracted services, and whether certain terms in the contract were unfair under the Australian Consumer Law. The court needed to determine if the clause effectively excused the respondent's obligations and whether the unfair terms rendered the contract void. The court considered the interpretation of the force majeure clause, the nature of the services contracted for, and the implications of the unfair terms on the contract's enforceability.

In reaching its decision, the court found that the force majeure clause did excuse the respondent from fulfilling their contractual obligations due to circumstances beyond their control. The court also held that certain terms in the contract were indeed unfair, however, these terms did not render the entire contract void. The court reasoned that the unfair terms did not significantly imbalance the parties' rights and obligations and were not contrary to good faith. As such, the application for a refund was dismissed and Phillip Houghton was removed as an applicant.