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We booked tickets, through a travel agent for 5 people to

Customer Question
We booked tickets , through...
We booked tickets , through a travel agent for 5 people to travel from Sydney to Taiwan in December 2017 . The first name of one of the passengers has been spelt incorrectly ( Chen ,,,and should be Chin ). The travel agent wants to charge $220 for them to make the change.They say its this much as we purchased 'Discount " tickets.
JA: Because traffic laws vary from place to place, can you tell me what state this is in?
Customer: My Question is : Is this correct as the Airline ( China Airlines) says they cannot change the name as we booked through an agent. We seem stuck to pay this I think unreasonable charge..We are in NSW
JA: Has anything been filed or reported?
Customer: So far we have only spoken by telephone to the agent when we pointed out the error..They say it's our error as we did not correct their typing mistake when collecting the tickets
JA: Anything else you want the lawyer to know before I connect you?
Customer: That is all...And is the current situation...
Submitted: 4 months ago.Category: Australia Law
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Answered in 5 minutes by:
7/24/2017
Solicitor: John Melis,
 replied 4 months ago
John Melis
Category: Australia Law
Satisfied Customers: 786
Experience: Principal Lawyer at Legal AU Pty Ltd
Verified

Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

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Solicitor: John Melis,
 replied 4 months ago

Dear customer, your question relates to one of contract.

The long held rule of contract is that once the signature of a party is written on the agreement and exchange has occurred, the contract will be binding even if the party has not read the terms and conditions. However, there are limited exceptions to this rule, that would ultimately need to be argued in court.

As far as the agency charging an extra fee this will be subject to the terms and conditions you agreed with when the tickets were purchased. I recommend that you review the terms and conditions.

The feed that has been charged does seem excessive. Where the fee is excessive, to a point of being a penalty, the fee may b e argued as a unfair contract term, which may breach the Australian Consumer Law. If this is the case a claim may be raised.

Kind regards *****

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Solicitor: John Melis,
 replied 4 months ago

Dear customer, the Australian Consumer Law, Schedule 2, section 25 provides a guide as to what is an unfair term in a consumer contract. This guide is of course dependent on the particular circumstance of each case.

Bringing a claim of damages for an unfair contract term in a consumer contract requires three conditions to be met:

1. The contract between the parties needs to be a consumer contract.

a. Section 23 (3) of the Act defines a consumer contract as a contract for:

i. a supply of goods or services; or

ii. a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

2. The contract between the parties needs to be a standard form contract:

a. A standard form contract is not defined by the act, but it may be said that it is a contract which is prepared by one party and is not subject to negotiation by the other party, or no opportunity to negotiate its terms.

b. Where there is a dispute as to whether a contract is a standard form contract, the court will take various considerations into account in its determination, and each case will be assessed on its merits.

3. There needs to be an unfair term in the contract:

a. The court in determining whether a contract term is unfair, will apply a three-limbed test for unfairness:

1. A contract term will be unfair which causes a significant imbalance with the rights and obligations of the parties under the contract.

2. A contract term will be unfair if it is not reasonably necessary to protect the legitimate interests of a party advantaged by that term.

3. A contract term will be unfair if it will cause detriment to a party if applied or relied on by the other party to the contract.

Unfair contract terms give a unilateral right to one party and no rights to the other.

The important point for the consumer is to know when an unfair contract term is included in a contract.

The following list is an extract from section 25 of the Act which provides a guide to what may be an unfair contract term in a consumer contract:

a) a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract;

b) a term that permits, or has the effect of permitting, one party (but not another party) to terminate the contract;

c) a term that penalises, or has the effect of penalising, one party (but not another party) for a breach or termination of the contract;

d) a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract;

e) a term that permits, or has the effect of permitting, one party (but not another party) to renew or not renew the contract;

f) a term that permits, or has the effect of permitting, one party to vary the upfront price payable under the contract without the right of another party to terminate the contract;

g) a term that permits, or has the effect of permitting, one party unilaterally to vary the characteristics of the goods or services to be supplied, or the interest in land to be sold or granted, under the contract;

h) a term that permits, or has the effect of permitting, one party unilaterally to determine whether the contract has been breached or to interpret its meaning;

i) a term that limits, or has the effect of limiting, one party's vicarious liability for its agents;

j) a term that permits, or has the effect of permitting, one party to assign the contract to the detriment of another party without that other party's consent;

k) a term that limits, or has the effect of limiting, one party's right to sue another party;

l) a term that limits, or has the effect of limiting, the evidence one party can adduce in proceedings relating to the contract;

m) a term that imposes, or has the effect of imposing, the evidential burden on one party in proceedings relating to the contract;

n) a term of a kind, or a term that has an effect of a kind, prescribed by the regulations.

Every consumer as a right to be protected. However, the first step for the consumer is to know what the consumer rights are in simple form.

Kind regards *****

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Solicitor: John Melis,
 replied 3 months ago

Dear customer, if you would like to discuss this matter further, I welcome you to request telephone services.

Don’t forget to rate my service.

Kind regards

John Melis

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John Melis
John Melis
John Melis
Category: Australia Law
Satisfied Customers: 786
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