Alabakis v Boyd - [2010] VSC 472

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 627 of 2010

THOMAS ALABAKIS	Plaintiff
v
MICHAEL BOYD	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 SEPTEMBER 2010
DATE OF JUDGMENT:	20 OCTOBER 2010
CASE MAY BE CITED AS:	ALABAKIS v BOYD
MEDIUM NEUTRAL CITATION:	[2010] VSC 472

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ADMINSTRATIVE LAW – Appeal from tribunal - VCAT – refusal of jurisdiction – whether conduct in trade or commerce – “fair trading dispute” - supply of services - whether rights provided, granted or conferred in trade or commerce - Victorian Civil and Administrative Tribunal Act1998 s 148 - Fair Trading Act 1999 s 3, 9, 107(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Moon	Thomas Egan & Associates
For the Defendant	Mr M McKillop	HWL Ebsworth Lawyers

HIS HONOUR:

By leave granted by an Associate Justice on 17 March 2010, the plaintiff, Mr Thomas Alabakis, appeals against the order of VCAT made on 14 January 2010 that the Tribunal does not have jurisdiction to determine his claims.

Before VCAT, Mr Alabakis alleged two causes of action. He sought damages for deceptive and misleading conduct in breach of s 9 of the Fair Trading Act 1999 (the Act). The relevant conduct was alleged to be representations made to Mr Alabakis by Mr Michael Boyd, upon which he relied in subscribing for shares. Secondly, Mr Alabakis contended that the circumstances gave rise to a consumer and trader dispute under s 107(1) of the Act.

The finding that VCAT did not have jurisdiction was based on a conclusion that neither the representations, nor the agreement or arrangement between the parties, occurred in the course of trade or commerce.

The issue on the appeal is, in short, whether this finding is open, or is correct.

Background circumstances

The evidence at the VCAT hearing concerning the relevant dealings revealed that at the heart of the dispute was a placement of shares in Advance Healthcare Group Ltd (“AHG”). AHG was a publicly listed company in 2007, the time of the events in issue in the proceeding. On 28 April 2008, administrators were appointed to AHG and trading in its shares was suspended on the ASX. Later, liquidators were appointed. The shares are now, apparently, worthless.

On 5 January 2007, PharmAust Ltd made an announcement to the ASX about a possible takeover offer for AHG. On 22 January 2007, AHG announced that the directors had resolved to make an equity placement to raise $400,000. It seems clear that AHG was short of working capital. The possible takeover by PharmAust Ltd did not proceed. On 14 February 2007, Fulcrum Equity Ltd announced to the ASX that it had entered into a conditional agreement to acquire a controlling interest in AHG. An extraordinary general meeting of shareholders was convened for 19 March 2007 to vote on a series of resolutions that stemmed from the restructure and recapitalisation of AHG arising out of these, and other, events. Mr Boyd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alabakis v Boyd

Details

AGLC: Alabakis v Boyd [2010] VSC 472
Case: [2010] VSC 472
Decision Date: 20 OCTOBER 2010

CaseChat Overview and Summary

The applicant, Mr. Alabakis, sought review of a decision by the respondent, Ms. Boyd, who is a member of the Victorian Civil and Administrative Tribunal (VCAT), to decline jurisdiction in a matter concerning a dispute over the supply of services. Mr. Alabakis argued that the tribunal should have jurisdiction under the Fair Trading Act 1999 to hear his claim for breach of contract and unfair contract terms. The respondent contended that the dispute did not fall within the definition of a "fair trading dispute" as it did not involve the conduct in trade or commerce as required by the Act.

The primary issue before the court was whether the dispute concerning the supply of services between Mr. Alabakis and Ms. Boyd constituted a "fair trading dispute" within the meaning of the Fair Trading Act 1999. The court had to determine if the dispute involved conduct in trade or commerce and whether the rights provided, granted, or conferred in the contract were related to trade or commerce. The court also had to interpret relevant sections of the Victorian Civil and Administrative Tribunal Act 1998 and the Fair Trading Act 1999 to ascertain the scope of VCAT's jurisdiction.

The court found that the dispute did not involve conduct in trade or commerce as it was a personal services agreement between the parties. The court held that the nature of the services provided did not involve trade or commerce, and thus, the dispute did not fall within the definition of a "fair trading dispute." Consequently, the court dismissed the application for review and upheld the respondent's decision to decline jurisdiction. The court concluded that VCAT did not have the authority to hear the matter under the Fair Trading Act 1999.

The court's final order was that the application for review be dismissed with costs. The court found that the respondent's decision to decline jurisdiction was correct and that the applicant's appeal was without merit. The court also noted that the applicant had the right to seek a review by the Supreme Court of Victoria if he wished to challenge the respondent's decision.

Orders