Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Webb v Flight Centre Travel Group Limited [2021] NSWCATCD 31 Hearing dates: 8 April 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Jurisdiction: Consumer and Commercial Division Before: P Thew, General Member Decision: The application is dismissed.
The Tribunal NOTES that the Respondent stated during the hearing that the Applicant has available to him a credit with the Respondent to the full value of the amount that he paid to the Respondent that he can use within 24 months from the date of having made that payment and that the tickets are transferrable.
Catchwords: CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill
Legislation Cited: Australian Consumer Law, schedule 2 to the Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Category: Principal judgment Parties: David Webb (Applicant)
Flight Centre Travel Group Limited (Respondent)File Number(s): GEN20/47940 Publication restriction: Nil
REASONS FOR DECISION
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On 16 November 2020 the Tribunal received an application made by Mr David Webb (the Applicant) against Flight Centre Travel Group Limited (the Respondent). In the Application the Applicant sought an order for compensation in the sum of $4233.48 that he claimed by way of reimbursement for the deposit paid for two air travel tickets that he states in his Application he purchased through the Respondent as agent for Air Canada.
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The matter was listed for a final hearing on 8 April 2021. During this hearing (by telephone) the Applicant was self represented and the Respondent was represented by Ms White.
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The Applicant has not specified in his material which legislative provisions he relies upon but said during the hearing, upon questioning by the Presiding Member, that he asserted that the Respondent had failed to meet the obligation of due care and skill. This obligation is contained in within section 60 of the Australian Consumer Law (the ACL), at Schedule 2 to the Competition and Consumer Act 2010 (Cth), dealt with below.
EVIDENCE
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In reaching the conclusions herein, the Tribunal has had regard to the following:
The material filed by the Applicant on 24 November 2020 and 2 February 2021 marked Exhibits A1 and A2 respectively.
The material filed by the Respondent on 8 March 2021 and marked Exhibit R1, said in the hearing to be the only bundle the Respondent relied upon.
The oral evidence and submissions made by the parties at the hearing on 8 April 2021.
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The specific documentary and oral evidence is described below.
JURISDICTION
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The Tribunal's Consumer and Commercial Division has jurisdiction in relation to consumer claims under Part 6A of the Fair Trading Act 1987 (NSW) (the FT Act) which may give rise to rights arising under the ACL: see for instance Salloum v Charles Golding t/as Golden Motors [2016] NSWCATCD 72 at [3] to [7], unchallenged and not overturned on appeal: Golding v Salloum [2016] NSWCATAP 267 at [14]. Section 28 of the FT Act…
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- Case
- [2021] NSWCATCD 31
- Decision Date
CaseChat Overview and Summary
The Applicant argued that the Respondent breached the consumer guarantee as to due care and skill under the Australian Consumer Law by failing to ensure that the flights were not cancelled. The Respondent argued that it was not liable because the cancellation of the flights was caused by the airline, which was not under the control of the Respondent. The Respondent also argued that the Applicant was not entitled to a refund because he had not suffered any loss.
The Tribunal noted that the Applicant had not suffered any loss because he had not actually travelled and therefore had not suffered any inconvenience or disappointment as a result of the cancellation of the flights. The Tribunal also noted that the Respondent had offered the Applicant a credit for the same amount that he had paid for the holiday package. The Tribunal held that the Respondent was not liable for the breach of the consumer guarantee as to due care and skill because the cancellation of the flights was caused by the airline, which was not under the control of the Respondent. The Tribunal also held that the Respondent was not required to provide a refund to the Applicant because he had not suffered any loss.
The Tribunal dismissed the Applicant's application for a refund and noted that the Respondent had offered the Applicant a credit for the same amount that he had paid for the holiday package. The credit was available to the Applicant for 24 months from the date of having made the payment and the tickets were transferrable.
Orders
Orders of the court
The application is dismissed.
The Tribunal NOTES that the Respondent stated during the hearing that the Applicant has available to him a credit with the Respondent to the full value of the amount that he paid to the Respondent that he can use within 24 months from the date of having made that payment and that the tickets are transferrable.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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