REVEALED: How much Bluesfest has to pay back to stallholders
THE organisers of Bluesfest Byron Bay have been ordered to repay more than $90,000 in fees to some stallholders who were due to operate at the cancelled 2020 festival.
A group of 11 businesses took Bluesfest Services Pty Ltd to the NSW Civil and Administrative Tribunal over stallholder fees which were paid to the festival and withheld after the decision was made for the event to not proceed, because of COVID-19.
A public health order that effectively prohibited the event due to its scale was issued shortly before it was due to go ahead.
Senior NCAT member Graham Ellis handed down his judgment on the matter on Tuesday following a hearing late last year, ordering Bluesfest to pay a total of $90,250.45.
The applicants had sought a refund on their fees and wanted the festival to cover related out-of-pocket expenses.
A key issue was whether they were eligible for a refund on the basis a clause within their contract was "unfair".
This clause states Bluesfest has "no liability or obligation to refund their deposit or stall fees" if the stall holder is unable to operate their stall "due to weather or any other force majeur event".
Force majeur relates to unforseen circumstances like a natural disaster, and in this case the pandemic.
Mr Ellis said he was satisfied a "significant imbalance" existed in the way the contract entitled Bluesfest "to retain the entire stallholder fee if a force majeure event occurred".
"In circumstances where it is not considered necessary to have a similar provision in the contracts with the performing artists then it is difficult to contend that it is reasonably necessary to have the provision … in the stallholder contracts," Mr Ellis said.
The applicants gave evidence they had obtained stallholder fee refunds from other festivals similarly affected by COVID-19, further supporting the argument the clause in question was "not reasonably necessary".
Mr Ellis found the applicants suffered "financial detriment due to the operation of the force majeure wording" in the cause, which he found was therefore "unfair and … rendered void".
He ordered the refund of stallholder fees, but not to other amounts claimed.
The applicants have foreshadow an application for costs to be awarded.
Bluesfest Services Pty Ltd has been ordered to pay the following refunds:
• $13,385 to The Cajun Kitchen Pty Ltd
• $10,160 to Sate House Pty Ltd
• $9,560 to Moreton Bay Sea Farms Pty Ltd
• $9,410.45 to Rebecca Stewart and Hayes Maclure trading as Voodoo Burgers
• $9,950 to Paul Daly trading as The Fish Taco Co
• $8,510 to Kirsty & Appi Papp trading as Lango
• $5,400 to Wayne Jeffery trading as The Hat Empire
• $3,400 to Liza-Lee Campbell trading as 24:7 Sunglasses
• $12,285 to Cakes By Sweethearts Pty Ltd
• $4,790.00 to Sukkupmaida Saraigh trading as Balinese Street Food
• $3,400.00 to Kerry Williams trading as Gatinha Beachwear