Bluesfest and stallholders in tribunal stoush over fees

SMALL businesses who would have operated at the festival this year are seeking refunds on fees paid for the event.

A GROUP of stallholders who were set to operate at Bluesfest Byron Bay this year have taken the festival's organisers to the NSW Civil and Administrative Tribunal.

The proceedings, brought by 11 stallholders who sell food and other goods, were subject to a hearing before the tribunal on Monday.

Lawyer Mark Swivel, representing the stallholders, said each of them "paid (Bluesfest) a sum of money for a purpose that was never realised".

They are seeking the return of their stallholder fees, which have a combined value of about $90,680. 

Mr Swivel has argued, in written submissions, Bluesfest "has no legal reason to retain this money".

The festival was to be held in April but it became a prohibited activity in a Public Health Order imposed on March 16, as a result of the COVID-19 pandemic.

Mr Swivel said although Bluesfest sought to rely on "a purported force majeure clause under the stallholder contract" his clients were "entitled to be repaid the fee" because the clause was "unfair under Australian Consumer Law and therefore void".

This clause states that Bluesfest "has no liability or obligation to refund their deposit or stall fees" in circumstances where "a stall holder is unable, due to weather or any other force majeure event, to conduct and operate their stall."

Mr Swivel argued this imposed a "significant imbalance in the parties rights and obligations" and that it was "not reasonably necessary to protect the interests of the respondent".

He said stallholders requested a refund of the fees and were instead offered a rollover to Bluesfest 2021, which they "did not want". They offered to accept an 80 per cent refund, but this was declined.

The barrister representing Bluesfest, Mark Southwick, said there was "no suggestion" the stallholders did not understand the implications of the contract.

Crowds waiting for food at a past Bluesfest.

"What … stallholders were doing was buying into the benefit of all of the preparation that had been done … and accepting a degree of risk thereafter," Mr Southwick said.

Mr Southwick said stallholder fees were used in preparation and promotion of the festival and his client "entered into substantial contractual obligations with suppliers, and performers", as described in an affidavit from festival director Pete Noble.

He contested the assertion that Bluesfest "cancelled the festival".

"The situation as set out in the Public Health Orders is that the government, in effect, prohibited the event," Mr Southwick said.

"Our position is that Bluesfest … had no obligation to repay the money.

"It is the entity that took the bulk of the risk and indeed had very real problems to deal with following the prohibition of the event."

He said the applicants were seeking "to reassign the entire risk to Bluesfest and rewrite the contract by having (the clause) declared void" while his client had "fully or substantially performed its implied contractual obligation to promote and produce Bluesfest".

A decision on the matter has not yet been handed down.

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