No refund is made of the fare paid for travel, a tour or a cruise, if you cancel your booking before departure,
unless a credit exists after cancelation charges are deducted or unless the operator cannot provide the travel, tour or cruise.
Overview
In this article, we examine:
- Cancellation policies in the booking conditions / terms & conditions used by travel, tour and cruise line providers
- The provider’s obligation to comply with the Australian Consumer Law
- A case study where the customer claimed a full refund for a boat charter, but failed because the provider’s booking conditions were clear and there was no breach of the Australian Consumer Law
Cancellation policies
Cancellation policies in the terms and conditions will provide for cancellation charges which progressively increase the closer the cancellation is to the departure date.
The cancellation charges are made to compensate the provider for their losses, which include administration costs, operational costs, payments made to suppliers, and the cost of a new booking.
These are samples of cancellation policies used by airlines, tour operators and cruise lines.
Airlines
If through no fault of ours you fail to check-in by the Check-in Deadline or you arrive without your Ticket or Boarding Pass and all necessary travel documents, you may not be allowed to travel and, depending on your Fare Type, your Ticket may be cancelled or you may have to pay a service fee to re-book your flight.
If you notify us in advance, in accordance with any timeframes set out in your Fare Rules, that you will not show up for the flight, we will not cancel any subsequent flight bookings on your Ticket.
Some fare types may be non-refundable or only partially refundable in circumstances where you cancel your flight, as set out in the applicable Fare Rules. You should choose the fare which best suits your needs and consider taking out travel insurance which covers you in case you need to cancel your booking.
Comment: Airlines have fare structures which allow the customer to choose a flexi-fare, if they wish to have the flexibility to cancel. If not, no refunds are given for cancellations by customers.
Tour Operators
If you cancel some or all portions of your booking the cancellation terms set out below will apply. A cancellation will only be effective when we receive written confirmation from you that you wish to cancel. If you cancel a trip:
- 60 days or more prior to departure, we will hold your deposit amount as a credit (Deposit Credit);
- between 31 and 55 days prior to departure, we charge a cancellation fee of 30% of the total booking cost;
- between 30 and 15 days prior to departure, we charge a cancellation fee of 60% of the total booking cost; or
- 14 days or fewer prior to departure, we charge a cancellation fee of 100% of the booking cost.
Any Deposit Credit may not be applied to the same or similar dates of travel.
Comment: Tour Operators require the tour price to be paid well in advance, generally, 60 days before departure. The cancellation charges increase closer to the departure date, until at 14 days before departure there is are no refunds.
Cruise Lines
Guests must arrive on time at the port and at their designated boarding appointment time. Except as otherwise expressly provided in our Cancellation and Refund Policy, no refunds will be made in the event of “no shows”, unused tickets, lost tickets, partially used tickets, or cancellations received late or after the start of the cruise.
Cancellation charges for all bookings will be assessed as listed below.
| Days prior to departure date | Cancellation charge |
| Up to 76 days | None |
| 75 to 56 days | Deposit |
| 55 to 30 days | Deposit or 50% total fare (greater of) |
| 29 to 15 days | Deposit or 75% total fare (greater of) |
| 14 days or less | 100% total fare |
Comment: Cruise Lines, like tour operators, require the total fare to be paid in advance. Cancellation charges increase until 14 days before departure when they are100% of the total fare.
Australian Consumer Law
The Australian Consumer law makes is illegal for travel service providers to state - No Refunds.
That is because the Australian Consumer Law gives consumers rights that:
- the services will be provided with due care and skill
- the services will be fit for a particular purpose
- the services will be provided within a reasonable time
These rights are known as consumer guarantees. If the services are not provided as required by the Australian Consumer Law, then a right to a refund might exist.
The Australian Competition & Consumer Commission (ACCC) administers the Australian Consumer Law.
The ACCC webpage Travel delays and cancellations gives useful advice to travel service providers:
When a business sells a product or service that doesn’t meet the consumer guarantees, it must offer the consumer a solution. The solutions are collectively referred to as remedies, and may include a replacement or refund.
Travel service providers do not have to give replacement travel services or refunds under the consumer guarantees if:
-
- consumers change their mind or miss their travel service due to no fault of the travel service provider
- the actions of a third party prevents the travel service provider from supplying their service. For example, where airlines cancelled flights due to government travel restrictions in response to COVID-19.
In these situations, the consumer's right to a refund or replacement travel service will generally depend on the terms and conditions of their booking.
Comment: Travel service providers are able to make cancelation charges if the consumers change their mind or miss their travel service due to no fault of the travel service provider.
Case Study
This case study is drawn from a decision of the Appeals Panel of the NSW Civil and Administrative Tribunal (NCAT). The decision is Nicholson v Sydney Harbour Escapes Pty Ltd [2025] NSWCATAP 198.
The facts
Marcus and Shelley Nicholson decided to get married on Shark Island, in Sydney Harbour. They booked two charter boats through Sydney Harbour Escapes to transport themselves, their family and friends to the Island where only the wedding ceremony was to take place. It was an outdoor wedding, and they were aware of the risks in relation to the weather. They paid the cost which was $5,960.
The charter was to commence at 1:20 pm and finish at 5:00 pm on 5 April 2024.
Marcus and Shelley raised concerns about the weather reports with Sydney Harbor Escapes from 2 April. There were emails back and forth. They raised concerns about the safety of their elderly and less mobile guests. On each occasion, Sydney Harbour Escapes expressed confidence in safely going ahead with the booking. It prepared the boats for the charter.
On the morning of 5 April, the Bureau of Meteorology issued a state-wide weather warning, a marine wind warning and hazardous surf warning for the area close-by to Shark Island. The NSW Premier made a public announcement that Sydney was to undergo a significant weather event with 90-kilometre an hour winds.
Marcus and Shelley cancelled the booking and asked for a full refund. They did not accept the offer made by Sydney Harbour Escapes to re-schedule to another date.
The Unsafe weather and Cancellations clauses
The Booking Conditions contained these clauses:
Unsafe weather
If the weather is dangerous for boating, Sydney Harbour Escapes will decide on the morning of the charter whether it will be postponed. Unsafe weather is not classified as usual rain or windy circumstances. If it is postponed, we will reschedule the charter. Rescheduled charters must be used within six months of the original booking date. Payment will still apply for catering, wait staff and Wharf booking fees. If you choose not to reschedule, then cancellation fees will apply.
Cancellations
Cancellations made 28-14 days prior: Total monies paid are not refundable. Consideration will be given to food, staff and boat costs incurred due to the cancellation.
Cancellations made less than 14 days prior: full payment is not refundable.
If the operator cancels the charter, the charter amount will be refunded.
The legal claim
Marcus and Shelly said that Sydney Harbour Escapes (SHE) could not rely upon these clauses because they had not complied with the Australian Consumer Law for these reasons:
- SHE did not exercise due skill and care needed because they did not consider whether the weather conditions were safe for the period of the charter when they discussed cancellation [that is, the prospect that the weather might improve].
- SHE did not provide a service fit for purpose [that is, it could safely sail in that weather].
The decision
The Tribunal member dismissed the claim. Amongst the reasons given were:
- The contract terms relating to the weather and cancellation were clear and unambiguous. It was SHE’s obligation to make the call on whether the charter should proceed, and after reviewing the weather early in the morning, SHE decided the charter should proceed.
- The forecasts given by the Bureau of Meteorology or the Premier were not a term of the contract.
- The customers refused the offer by SME to postpone the charter with minimal costs. The evidence showed that the customers were able to easily change the wedding ceremony to the onshore reception venue late on the morning of 5 April.
- The late cancellation notice caused SHE to incur costs including the private charter of the boats, lost administrative and office time spent dealing with the booking and time in performance of the weather assessment of 5 April 2024.
- The skipper took videos of the route that afternoon which showed that the charter could have operated in a safe environment, and that therefore due skill and care had been provided and the services would have been reasonably fit for the purpose intended [as required under the Australian Consumer Law].
The Appeals Panel of the NSW Civil and Administrative Tribunal (NCAT) did not decide upon the claim because it decided to allow Marcus and Shelly to give new evidence about the weather being unsafe in the afternoon. The claim was remitted to the Tribunal to be reconsidered.
Conclusion
Cancellation charges can be made, so long as the travel service provider complies with their obligations under the Australian Consumer Law.
Travel service providers should take care to ensure that their cancellation policies are suitable for the services provided and the cancellation charges take into account the loss they suffer as a result of the cancellation.
Customers who cancel travel arrangements need to have a reason for cancellation (such as an unforeseeable event or an incident outside of their control) before travel insurance will cover their fare they have lost. Travel insurance does not normally cover cancellations due to change of mind.