Travel Compensation Fund v Northern Gateway [2005] NSWSC 158 | Case summary

JUDGMENT 1 Master: The governments of certain States entered into a participation agreement. A fund, to be known as the Travel Compensation Fund (the Fund), was set up for the purposes of the administration of a scheme. A deed of trust made provision for the scheme. 2 The Fund is the plaintiff in these proceedings. The defendant is a travel agent in the Northern Territory. 3 I shall briefly refer to just some of the factual background. What is set out is not intended to be exhaustive. What is said to have happened has been described as a "scam". 4 ABC World Travel Marrickville Pty Limited (ABC World Travel) is a travel agent in New South Wales. It was approached by "Eric Hbho" of "Brukamp International" concerning proposed travel. Some two weeks later, a "Julius" of "Bruka Tours" contacted the defendant concerning proposed travel. The proposed travel involved a South African group. Some credit card transactions were declined by the ANZ bank. The defendant then received by facsimile a document that purported to be an ABC World Travel tax invoice. Acting on that invoice, the defendant transferred by electronic transfer the sum of $38,400.00 to the ABC World Travel bank account. 5 "Eric Hbho" advised ABC World Travel that he was cancelling the proposed travel and sought a refund of $38,400.00. ABC World Travel then gave him a cheque for $38,000.00 (an amount was deducted by way of cancellation fee). 6 The defendant made a claim for compensation to the plaintiff. The plaintiff rejected the claim. The defendant brought an appeal from that decision in the Consumer Trader & Tenancy Tribunal (the Tribunal). After a contested hearing, on 3 August 2004, the plaintiff was ordered to pay the sum of $38,400.00 to the defendant. The Tribunal has provided written reasons for that decision. 7 On 27 August 2004, the plaintiff filed a summons in this Court purporting to bring an appeal pursuant to s67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). 8 The appeal was heard on 7 March 2005. 9 I now turn to the trust deed. Certain of its provisions are relevant for present purposes. It contains interpretation provisions (including definitions of "participant", "person", "travel arrangement" and "travel-related arrangement"). The definition of "travel arrangement" is expressed to mean any arrangement entered into in a State with a travel agent for the provision of services which in that State constitutes the carrying on of business as a travel agent in that State. 10 Clause 2 of the trust deed sets out the "Title and objects of the trust". Clause 2.2. is in the following terms:- The object of the Trust is to provide a trust fund for the benefit of - (a) the Crown in the right of a State; and (b) any person who entrusts money or other valuable consideration to a travel agent in respect of any travel arrangement or travel-related arrangement if - (i) the travel agent fails to account for that money or consideration; or (ii) the travel agent passes all or part of that money or consideration to another travel agent who fails to account for that money or consideration in the capacity as a travel agent; or (iii) it appears likely that the travel agent or other travel agent will fail to account for that money or consideration as set out in clause 22(b) or (ii). 11 The payment provisions may be found in clause 15. Clause 15.1 reads as follows:- The Board must pay compensation out of the Fund to a person who - (a) enters into travel arrangements or travel-related arrangements directly or indirectly with a participant; and (b) has suffered or may suffer direct pecuniary loss arising directly from a failure to account by the participant for money or other valuable consideration paid by the person; and (c) is not protected against the loss by a policy of insurance. 12 Clause 19 of the trust deed makes provision for appeals. 13 I now return to the decision of the Tribunal. There was no issue as to 15.1(c) and ABC World Travel fell within the definition of "participant". The Tribunal found that the defendant was a "person" within the definition contained in the trust deed. There was a real issue between the parties as to whether or not the defendant had entered into either "travel arrangements or travel-related arrangements". The Tribunal found that it had entered into a "travel arrangement". There were other issues (inter alia, whether there was a failure to account by ABC World Travel and did the applicant suffer a direct pecuniary loss arising from that failure to account. These issues were found in the defendant's favour. 14 There are eight grounds of appeal. It is unnecessary to deal with them individually. 15 Before addressing the grounds of appeal, it is first necessary to make some observations as to the narrow avenue of appeal that is open under s67 of the Act. The ambit of the appeal is a crucial matter in this case. It seems to me, that none of the grounds argued fall within the provisions of s67. 16 The plaintiff approached this appeal on the basis that the appeal provided by s67 was relevantly indistinguishable from that which is available from the Local Court (error in point of law). It relied on what was said in Cohen-Hallaleh v Cyril Rosenbaum Synagogue [2003] NSWSC 395. 17 In my view, that decision is against the weight of the authority and it does not address the linguistic differences in the respective statutory provisions. 18 Section 67 provides an appeal where the Tribunal decides a question with respect to a matter of law. There can be no appeal unless the Tribunal has decided a question and the question itself is with respect to a matter of law. It is sometimes said that the appeal is restricted to pure questions of law. 19 The principal challenge was directed to the finding that the defendant had entered into a travel arrangement. It was said, inter alia, that there was no evidence to support that finding and that no travel arrangement could arise on the facts of this case. 20 In my view, a no-evidence argument does not give rise to a ground of appeal under the provisions of s67. It does not meet the criteria set forth in the section. 21 The plaintiff contends that there cannot be an "arrangement" without some mutuality of intention between the parties thereto. The Court has been referred to certain decided cases to support this argument. These are cases in which "arrangement" has been considered in the context of certain legislation. In my view, those authorities do not assist in the present case. 22 It seems to me that "arrangement" has to be considered in the context in which it appears (in the trust deed). The definition is expressed in the most general of terms. It contemplates any arrangement entered into with a travel agent for the provision of services (which constitutes the carrying on of business as a travel agent). Apart from the definition, the objects and other provisions of the trust deed are material. The definition, the objects (inter alia, the entrusting of money to a travel agent in respect of any travel arrangement) and other provisions in the deed (the travel arrangements can be entered into directly or indirectly with a participant) suggest to me that "arrangement" is to be given a wide meaning. 23 It seems to me that this view is reinforced when regard is had to the dictionary meaning of the term. In my view, it should not be given a restricted meaning which confines it to a quasi-contractual context. 24 Leaving aside what has been earlier said, it seems to me that not only was there evidence before the Tribunal of a travel arrangement, it was reasonably open to the Tribunal to find that there was a travel arrangement within the meaning of the trust deed. Further, what was argued would not fall within the ambit of error in point of law (Australian Gas Light Co v Valuer-General (1940) SR (NSW) 126 at p 137). 25 I shall briefly refer to certain of the evidence that was before the Tribunal. There was the false or fraudulent invoice which related to the provision of services (return airfare with Qantas for a South African group). There was payment (or entrusting of moneys) to a participant which was referable to the invoice. There was evidence that what was done by the defendant followed the usual practice in the travel industry. 26 The plaintiff may be unhappy about the findings of a failure to account and pecuniary loss arising directly from that failure to account. Be that as it may, in my view, those findings cannot be challenged under s67. 27 Whilst the Tribunal did engage in certain legal considerations in dealing with the first of the two matters, the Member's views on those matters were ultimately of no determinative significance. Each of the matters came to be determined on findings of fact. Further, it may be added that the results that were reached were reasonably open on the evidence that was before the Tribunal. 28 The plaintiff bears the onus of satisfying the Court that the decision of the Tribunal should be disturbed. In my view, the plaintiff has failed to discharge that onus. 29 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned. **********

Travel Compensation Fund v Northern Gateway

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