Stallholders ask for $90,680 back after Bluesfest cancelled

ONE group is appealing for the return of fees due to an “unfair” clause, but the festival is opposing this.

Michael Franti performs out in the general area with crowds at Bluesfest 2018 in Tyagarah near Byron Bay.

THE firm representing Bluesfest in a tribunal dispute has argued the stallholders who have brought action against them understood the risks involved in their commercial agreement.

A group of 11 stallholders, who were expected to operate at Bluesfest Byron Bay this year, have brought proceedings against Bluesfest Services Pty Ltd before the NSW Civil and Administrative Tribunal.

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

Brad Heydon of Heydons Lawyers said there was no evidence the 11 stallholders, all classified as small businesses under Australian Consumer Law, did not understand the contract clause that is the basis of the proceedings.
"As business people they assess risk, like all business owners," he said.

"Both parties were seeking to gain revenue from the Bluesfest event.

"Some of the applicants have more employees than Bluesfest and significant turnover."

A crucial aspect of Bluesfest's argument was that the festival had no right to cancel the stallholder contracts.

Mr Heydon said only the applicants had that right.

"The only circumstances in which the stall fee would remain with Bluesfest is if the applicants were unable to operate their stall," he said.

"It was not about what Bluesfest might do or not do, but rather what the stall holder could do or not do."

Mr Heydon said Bluesfest's offer to roll over the stallholder contracts to the 2021 festival was an "equitable solution for all parties".

But while about 85 stallholders did accept this course of action, the applicants in the NCAT proceedings did not, Mr Heydon said.

Lawyer for the stallholders, Mark Swivel, argued in written submissions to the tribunal the festival's organisers had "no legal reason to retain this money".

He has argued the contract clause in question imposed a "significant imbalance in the parties rights and obligations", and was "unfair under Australian Consumer Law and therefore void".

The festival was to be held in April put was prohibited under a Public Health Order imposed by the state government on March 16 due to COVID-19.

A decision is yet to be handed down in the NCAT proceedings.

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