Travel company We Are Bamboo using Covid to refuse refunds an ‘extreme stretch’ - Consumer NZ

Mark Foster-Murray (left) and Colin Salisbury started We Are Bamboo to help travellers holiday ethically. Photo / Supplied

A Kiwi travel company blaming Covid for being unable to refund customers is making an “extreme stretch”, Consumer NZ claims.

“It’s not news to anyone that there’s a pandemic going on, it’s been going on for two and a half years,” said chief executive Jon Duffy.

Eco-travel business We Are Bamboo recently announced it was closing, blaming the failure of the business partly on Covid and partly on a small group of customers it was now looking at taking legal action against.

When asked by some customers whether they would be refunded the thousands of dollars already pre-paid for future holidays, the company told them over email they would not be receiving refunds, invoking the “force majeure” section of their terms and conditions.

“In short, a refund will not be possible given the reasons we have outlined,” the emails said.

“Obviously we recognise this is not what you want to hear, and we never thought we’d ever been [sic] in a position to have to state our terms and conditions. However, they exist for precisely these reasons.

“In this instance, where we have been forced to close beyond our control amounts to a force majeure event.”

But Duffy said in his opinion it was an “extreme stretch” to invoke force majeure in relation to the pandemic, particularly if the company had still been taking bookings recently.

Multiple customers told the Herald they booked their trips this year, with one saying she paid her bill in full just two weeks ago.

If a business took money knowing it could not fulfil its obligations it could be a breach of section 21 of the Fair Trading Act 1986, but that depended on intent, Duffy said.

Meanwhile, a retired solicitor who worked in consumer protection law for 30 years said contract law precedent has “well established” force majeure did not apply to justify financial hardship.

“The force majeure event itself must make performance at the time the obligation is to be performed physically or legally impossible. Unless that physical or legal impossibility continues, it cannot be invoked later at your convenience,” said the solicitor, who did not want his name used.

The announcement has left hundreds of customers, mainly from the US, UK, Canada and Australia, fearing they will never see the thousands of dollars they already paid for upcoming trips.

One such holidaymaker is Australian Kerry Hann, who wanted to book an ethical vacation as part of her bucket list.

“I specifically chose this company because working overseas helping less fortunate people and communities is on my bucket list which I started ticking off after I had breast cancer in 2008. I can’t afford to take months off work to do that but their trips were the next best thing,” she told the Herald.

“My cancer returned two months ago which I am having treatment for now and was looking forward to going on these two trips once I was well again.”

Hann did not receive the cancellation email and only found out about it online.

Lynn Kidd travelled to Costa Rica to help turtle populations. Photo / Supplied

“I was absolutely heartbroken, not just for me or the other travellers, but the people who will now not receive our help. Those two trips I did in 2019 were life-changing for me and the families and communities we worked with.”

Hann has paid A$3100 ($3385).

Ohio woman Lynn Kidd had done two trips with Bamboo, helping turtle populations in Costa Rica and building an outdoor toilet and chicken coop for a family in Vietnam.

She has not been denied a refund, but instead received an email stating the company’s closure could take 12 months and that the outcome of the process would determine the status of refunds.

She purchased travel insurance through Bamboo’s website but never received paperwork confirming the insurance.

“I just feel like it’s unfortunate that so many people around the world . . . they’re in this predicament,” Kidd said.

Ohio woman Lynn Kidd helped build a chicken coop and outdoor toilet for a family in Vietnam during an earlier trip with We Are Bamboo.

“I would be happy to get half of my money back.”

In a statement on its website, Bamboo said there was a “small group of individuals who were not prepared to wait [for delayed trips], and their actions and online influence have broken us, which impacts us all”.

It said the group shared personal contact details and also “spread misinformation and lies online”.

The statement did not specify the alleged lies, but said it meant sales levels were not high enough to ensure the company’s survival.

NZ Police would not comment on specific businesses but said they had received several complaints about a travel company and had determined the matter was civil, not criminal.

The Commerce Commission confirmed last week it had received 26 inquiries about Bamboo and was looking into the matter.

A petition addressing the company’s founders and calling them to repay the trip fees has gained nearly 900 signatures.