When a Canberra man used Wotif to book a Hawaiian beach apartment online, he was shocked to find on arrival that what had seemed a delightful holiday apartment on the website was, in his words, “a dump”.
As a result, a tribunal in Canberra has ordered Wotif’s parent Expedia to make a full refund. The ACT Civil and Administrative Tribunal (ACAT) found Wotif was misleading and deceptive in its promises that customers could “book with confidence” because the company had “heaps of local knowledge”, ABC News reported.
The consumer advocacy group Choice has expressed shock that the man, Hugh Selby, had to go to the extent of taking the matter to ACAT in order to get his money back.
Selby booked the apartment with beach views through Wotif – only to arrive on Oahu to find he had paid hundreds of dollars a night for a “dilapidated” basement with views of an outdoor kitchenette.
He felt ripped off.
“[We] looked at each other and said ‘hey, this is supposed to be a holiday, we don’t even want to spend one night here’. The place is dirty, the place is old, there’s no view, it’s not what we left Canberra for,” he told the ABC.
Selby did not stay at the apartment. He tried to obtain a refund from the US-based proprietor, but when that failed, he took Wotif’s parent company Expedia Australia to ACAT.
ACAT has now found Wotif engaged in misleading and deceptive conduct.
In the tribunal hearing, lawyers for Expedia submitted that the website’s terms of use included a warning that “the information displayed on this website concerning specific travel products and services is provided to us by the relevant travel suppliers … or their agents.
“The Expedia Companies are not responsible for such information and we rely on the accuracy of the information supplied by the relevant third part suppliers,” the terms of use state.
While Expedia’s lawyers said statements on the website that customers could “book with confidence” through Wotif were just marketing talk, sales pitch or puff, ACAT found those claims were important. The claims overrode the fine print designed to protect Expedia from liability.
How it looked on Wotif. But the holidaymaker found the reality very different
The following, from the ACAT published decision, is noteworthy. “The Tribunal” is ACAT and “the respondents” are Expedia Australia Pty Ltd (First Respondent) and Expedia Inc (Second Respondent).
16. The Tribunal put the following question to the respondents:
So what you essentially say is there’s no contractual liability because of the exclusion clauses and that the phrase “Book with confidence” and all the other stuff there about we’re pretty good at all of this and we’re different from all the other websites … and we’ve got lots of happy campers and honeymooners and end of year, gap yearers, all of that is mere puff, you say. It’s a marketing ploy. We don’t actually expect people to believe the promises that we put there. And they need to accept that they’re hyperbole?
17. The respondents’ answer is reproduced below:
Yes, with the one addition to that, I agree with the tribunal on that, with the addition that you know, being puff, it’s what does the reasonable consumer take from that. A reasonable consumer does think that the website is great, does think that they’ll get value for money, does think that the properties will be as described. I think that’s what a reasonable consumer would take from it, and I think that’s what most consumers do get. And as is the reality with anything, there will be a bad experience here and there. There will be a better than expected experience and at the end of the day, you know Wotif has provided their services.
Senior ACAT member J. Lennard stated:
29. In the circumstances of this particular case, it was not unreasonable for the applicant [Selby] to form the view, based on the representations that the respondents had ‘heaps of local knowledge’ and that you could ‘book with confidence’, that Wotif was promising that the applicant could rely on the information provided about Rocky Point Beachfront in Haleiwa, Hawaii and that the applicant could enter into the contract with Rocky Point Beachfront with confidence. This has not proved to be true. The accommodation was, as a matter of fact, not as described on the website but in a dilapidated and rundown condition, and with no sea views. As a consequence, the applicant paid to Wotif the accommodation costs of $628.34.
30. I am satisfied on the evidence before me that the applicant was induced by the statements contained on the Wotif website to enter into the contract for accommodation with the Rocky Point Beachfront. I am further satisfied on the evidence before me that the respondents engaged in misleading and deceptive conduct and that the statements on its website caused the applicant to form an erroneous view and he was led into error. As a result of this he has suffered damage by the loss of the $628.34 paid to the Rocky Point Beachfront for accommodation that did not correspond to the description on the website.
ACAT ordered that:
- The respondent shall pay to the applicant on or before 20 December 2018 the amount of $709.34, being damages in the amount of $628.34, the ACAT filing fee of $72, and the ASIC search fee of $9.
The full decision can be downloaded and read on the ACAT website here.
Written by Peter Needham
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