VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C1866/2019
CATCHWORDS	
misleading and deceptive conduct s 18 of Schedule 2 of the Australian Consumer Law & Fair Trading Act (Vic) 2012; terms and conditions	

APPLICANT	Beshara Bassilios	
RESPONDENT	Booking.com (Australia) Pty Ltd (ACN: 130 562 097)	
WHERE HELD	Melbourne	
BEFORE	Member K. Knights	
HEARING TYPE	Hearing	
DATE OF HEARING	14 May 2019	
DATE OF ORDER	19 June 2019	
CITATION	Bassilios v Booking.com (Australia) Pty Ltd (Civil Claims) [2019] VCAT 907	

Order

1.	The proceeding is dismissed for the reasons given orally at the hearing.

MEMBER K. KNIGHTS			

APPEARANCES:		
For Applicant	In person	
For Respondents	Mr Todd Lacey, Senior Account Manager (By Phone) & Mr Christien Corns and Ms Elise Hamblin of K & L Gates with leave granted by order made on 7 May 2019 to make submissions on terms and conditions	

Reasons
Background to written reasons
1	Following the giving of oral reasons for dismissing the proceeding but prior to leaving the hearing room, the legal representative for Booking.com (Australia) Pty Ltd requested written reasons.
Factual background to the dispute
2	There was no dispute as to the facts.  The agreed facts were as follows:
•	Mr Bassilios utilised the Booking.com website to book accommodation for his family at the Seacrest Apartments on the Gold Coast.
•	Payment was made to Seacrest Apartments.
•	Upon arrival Mr Bassilios and his family formed the view that the Seacrest Apartments were not of the four star rating advertised on Booking.com, were not clean, were noisy and that they could not enjoy their stay there.
•	Mr Bassilios cancelled the stay at the Seacrest Apartments and paid for alternate and more expensive accommodation elsewhere.
•	The Seacrest Apartments reimbursed Mr Bassilios $374.85.
•	Mr Bassilios brought the VCAT proceeding against Booking.com (Australia) Pty Ltd to recover $1267.29 being the amount of the new accommodation plus ASIC search less the refund from Seacrest Apartments.
Representor, parties to the contract and the contract terms and conditions
3	The Booking.com website requires the consumer (in this case Mr Bassilios) to accept its booking conditions and general terms prior to making a booking.  The clause that must be accepted before proceeding with the booking is as follows “By completing this booking you agree to the booking conditions, general terms and privacy policy.”  The words “general terms” are hyperlinked to a full copy of the “Trip Terms and Conditions”.
4	The “Trip Terms and Conditions” are fifteen pages long and the following is just a snap shot of the most relevant provisions:
•	“Booking.com”, “us”, “we” or “our” means Booking.com B.V., a limited liability company incorporated under the laws of the Netherlands and having its registered address at…the Netherlands.”
•	Through the Platform, we (Booking.com B.V. and its affiliate (distribution) partners) provide an online platform through which Trip Providers [in this case Seacrest Apartments]…can advertise, market, sell, promote and/or offer (as applicable) their products and service for order, purchase, reservation, hire…
•	By using or utilising the Trip Service (eg by making a Trip Reservation through the Trip Service), you enter into a direct (legally binding) contractual relationship with the Trip Provider [in this case Seacrest Apartments] with which you make a reservation or purchase a product or service (as applicable).
•	When rendering our Trip Service, the information that we disclose is based on the information provided to us by Trip Providers [in this case Seacrest Apartments].
•	Booking.com is not responsible (and disclaims any liability) for the use, validity, quality, suitability, fitness and due disclosure of the Trip and makes no representations, warranties or conditions of any kind in this respect, whether implied, statutory or otherwise, including any implied warranties of merchantability, title, non-infringement or fitness for a particular purpose.
•	You [in this case Mr Bassilios] acknowledge and agree that the relevant Trip Provider [in this case Seacrest Apartments] is solely responsible and assumes all responsibility and liability in respect of the Trip.
•	Booking.com has its headquarters in Amsterdam, the Netherlands and is supported by various affiliated group companies (the “support companies”) throughout the world. The support companies only provide an internal supporting role to and for the benefit of Booking.com.
5	The “Trip Terms and Conditions” make it clear that Booking.com (Australia) Pty Ltd is not the owner of the Booking.com website, is not involved in the making of the representations on the Booking.com website and has not entered into a contractual relationship with Mr Bassilios.  In those circumstances Booking.com (Australia) Pty Ltd has no case to answer to Mr Bassilios’ claims of misrepresentation and alleged deficiencies in cleanliness and noise. It is, in essence, the wrong respondent to Mr Bassilios’ claim.
6	Mr Bassilios did not join Booking.com B.V. as a respondent and I make no finding or comment as to whether the “Trip Terms and Conditions” would be effective to avoid it being held liable (as is plainly the intention) for representations made on the Booking.com website under s 18 of Schedule 2 of the Australian Consumer Law & Fair Trading Act (Vic) 2012.

MEMBER K. KNIGHTS