Cannonball Resources Pty Ltd v Kuzmich Watts & Tomich Group Pty Ltd

[2025] NSWCATCD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cannonball Resources Pty Ltd v Kuzmich Watts & Tomich Group Pty Ltd [2025] NSWCATCD 57

Hearing dates:

12 June 2025

Date of orders:

26 June 2025

Decision date:

26 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

E Yin

Decision:

(1)     The application by Cannonball Resources Pty Ltd is dismissed.

Catchwords:

Jurisdiction – jurisdiction to determine jurisdiction - agreement made in Victoria – exclusive law and jurisdiction clause

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) – ss 28, 29, Schedule 4 clause 3,

Electronic Transactions Act 2008 (NSW) – 13B

Fair Trading Act 1987 (NSW) – ss79D, 79E, 79F, 79J, 79K

Cases Cited:

Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418

Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652

Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419, [2019] NSWCA 61

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232

Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA10; (1957) 98 CLR 93

Category:

Principal judgment

Parties:

Cannonball Resources Pty Ltd (Applicant)

Kuzmich Watts & Tomich Group Pty Ltd (Respondent)

Representation:

Solicitors:

Kennedy & Cooke Lawyers (Applicants)

File Number(s):

2024/00425570

Publication restriction:

N/A

REASONS FOR DECISION

Introduction

1. By an application filed on 15 November 2024, Cannonball Resources Pty Limited (‘Cannonball’) seeks compensation orders pursuant to section 79N of the Fair Trading Act (NSW) (‘FT Act’) against Kuzmich Watts & Tomich Pty Limited (‘Aussie Buckets’) in the amount of $100,000. The claim arises from an alleged failure of the rotating hydraulic scrap metal shear (‘Shear’), that Cannonball purchased from Aussie Bucket, to function properly and carry out the required works in Cannonball’s business.

2. Aussie Buckets opposes the application and challenges the Tribunal’s jurisdiction to determine the matter, in particular section 79K of the FT Act.

Hearing on 12 June 2025

3. The matter was listed before me on 12 June 2025 to determine the issue of jurisdiction of the Tribunal under the FT Act. Both parties have complied with the Tribunal directions for filing and exchange of submissions and evidence.

4. Cannonball was represented by its solicitor, Mr Thompson, and its managing director, Mr Parkes. Cannonball relied on a bundle of documents filed on 14 March 2025 (comprise of submissions and annexures marked A to Q), which is marked ‘Exhibit A1’; and a bundle of documents filed on 4 December 2024, which is marked ‘Exhibit A2’.

5. Mr Tomich and Mr Kuzmich are the directors of Aussie Buckets and appeared on its behalf. Aussie Buckets relied on a bundle of documents filed on 26 March 2025 (comprised of submissions and a document titled ‘Terms of Trade’), which is marked ‘Exhibit R1’.

6. Each party was given an opportunity to present their evidence, ask questions of each other, and make submissions in relation to the issue of jurisdiction.

Jurisdiction

7. Section 28 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘CAT Act’) sets out the jurisdiction of the Tribunal generally as follows:

(1)   The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

(2)    In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction:

(a)    the general jurisdiction of the Tribunal,

…

8. Section 29 of the CAT Act sets out the jurisdiction of the Tribunal as follows:

(1)    The Tribunal has “general jurisdiction” over a matter if—

(a)   legislation (other than this Act or the procedural rules) enable the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and

(b)   the matter does not fall within the administrative review jurisdiction.

(2)   The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction—

(a)   the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

…

9. Schedule 4 clause 3 of the CAT Act sets out the functions of the Tribunal in relation to the FT Act are allocated to this Division.

10. Section 79J of the FT Act states:

The Tribunal has jurisdiction, except as otherwise provided by this Division, to hear and determine a consumer claim the subject of an application under this Division.

11. Section 79K of the FT Act states:

(1)    The Tribunal has jurisdiction to hear and determine a consumer claim if—

(a)    the goods and services to which the claim relates were supplied in New South Wales; or

(b)   a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or

(c)   a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales).

(2)    The Tribunal has such jurisdiction whether or not—

(a)   a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or

(b)    …

12. The Tribunal has the power to determine whether or not it has jurisdiction under section 79K of the FT Act: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16.

13. Accordingly, I find that I have jurisdiction to decide whether or not the Tribunal has jurisdiction to determine Cannonball’s claim against Aussie Buckets.

Cannonball’s position

14. Cannonball position is that its application is a consumer claim and the Tribunal has jurisdiction to determine the matter. It submits that the contract between the parties was made in New South Wales, Aussie Buckets provides its services nationwide, and the dealings between the parties occurred in New South Wales.

Aussie Bucket’s position

15. Aussie Buckets position is that the Tribunal does not have jurisdiction to determine the matter as the requirements under section 79K of the FT Act are not satisfied.

16. Further, Aussie Buckets contends that if the Tribunal finds that it has jurisdiction, the Tribunal ought not to determine the matter by reason of clause 11.2 of the Terms of Trade that formed part of the contract between the parties. Clause 11.2 of the Terms of Trade states that:

11.2   Governing law: These Terms are governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

Facts

17. The following facts are not in dispute between the parties.

18. Cannonball is a scrap metal recycling company operating in South Pambula, NSW.

19. Aussie Buckets is a supplier of custom-made heavy equipment attachments which are fabricated on demand. Its head office is in Melbourne, Victoria and its warehouse is located in Truganina, Victoria.

20. On about 24 October 2024, Aussie Buckets provided a quote for the Shear to Cannonball by email. As part of the quote, Aussie Bucket’s Terms of Trade (‘Terms of Trade’) were attached to the quote.

21. On about 21 December 2024, Cannonball informed Aussie Buckets that it accepted the quote. Upon receipt of the acceptance, Aussie Buckets issued Tax Invoice (Invoice Number INV-11352) to Cannonball.

22. Arrangements were made by Cannonball with its financier to pay the tax invoice for the Shear.

23. On 17 June 2024, Aussie Buckets informed Cannonball that the Shear was ready to be collected from its premises in Truganina, Victoria.

24. Between 17 June 2024 and 1 July 2024, Cannonball collected the Shear from Truganina, Victoria and returned to South Pambula, NSW.

25. On 2 July 2024, the Shear to installed into one of Cannonball’s excavators and problems immediately arose in relation to the Shear.

Consideration and findings

26. I have considered the evidence and submissions of the parties.

27. In considering the evidence, I find that Cannonball is a “consumer” within the meaning of s79D of the FT Act, being “a small proprietary company to whom a supplier has supplied, or agreed to supply, goods or services”

28. Aussie Buckets is a “supplier” within the meaning of section 79D of the FT Act, being “a person who, in the course of carrying on (or purporting to carry on) a business supplies goods and services”.

29. The claim by Cannonball is a consumer claim as defined by section 79E of the FT Act. It is a claim by a consumer for monies that arises from a supply of goods or services by a supplier to a consumer

30. The issue between the parties is whether the dealings occurred within New South Wales as required by section 79K of the FT Act.

31. Section 79K(1)(a) to (c) of the FT Act provides that the Tribunal has no other jurisdiction under the FT Act, and only if one of the those alternative provisions are satisfied. Section 79K(2)(a) leaves open the possibility that the Tribunal exercising jurisdiction even where there is Victorian law and jurisdiction clauses. I will deal with these issues below.

Section 79K(1)(a) and (b) – where was the Shear supplied?

32. Sections 79K(1)(a) and (b) of the FT Act are concerned with the location of where the goods were supplied.

33. Cannonball stated that the Shear was supplied in New South Wales and that the contract contemplated the Shear would be supplied in New South Wales.

34. Aussie Buckets stated that the Shear was supplied in Victoria. It stated that the Shear was collected from its premises in Truganina, Victoria by Cannonball.

35. In the evidence, Aussie Buckets informed Cannonball that the Shear was ready to be collected from its warehouse in Truganina, Victoria. Aussie Bucket did not provide any delivery services to Cannonball in relation to the Shear. It was Cannonball who arranged and paid for the transport and delivery of the Shear from Truganina, Victoria to South Pamula, New South Wales. Based on this evidence, I do not consider that the Shear was supplied in New South Wales.

36. There is also no evidence that the parties ‘contemplated’ the supply of the Shear in New South Wales.

37. Accordingly, I find that the Shear was supplied in Victoria. I am not satisfied the requirements under section s79K(1)(a) and (b) are made out.

Section 79K(1)(c) – Where was the Agreement made?

38. Section 79K(1)(c) of the FT Act deals with ‘where’ the agreement was made. This question also relates to ‘when’ the agreement was made, although they are two separate questions.

39. In Mrjana v Imagine Education Australia Pty Ltd [2016] NSWCATAP 232 (‘Mrjana’), the Appeal Panel said at [27]:

“…when a contract ‘made’ or to put it another way, when is the process of formation of contract complete.”

40. In Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA10; (1957) 98 CLR 93 at [111] per Dixon CJ and Fullagar J, who held:

“The general rule is that a contract is not completed until acceptance of an offer is actually communicated to the offeror, and a finding that a contract is completed by the posting of a letter of acceptance cannot be justified unless it is to be inferred that the offeror contemplated and intended that his offer might be accepted by the doing of that act.”

41. Cannonball stated that the quote came from Aussie Buckets’ office in Victoria and it had accepted Aussie Bucket’s quote from Cannonball’s offices in New South Wales. On this basis, Cannonball contends that the agreement was made when and where it was accepted by Cannonball in New South Wales.

42. Sections 13B(1) and (2) of the Electronic Transactions Act 2008 (NSW) states that:

(1)    for the purposes of a law of this jurisdiction unless otherwise agreed between the originator and the addressee of an electronic communication—

(a)     the electronic communication is taken to have been dispatched at the place where the originator has its place of business, and

(b)     the electronic communication is taken to have been received at the place where the addressee has its place of business.

(2)     For the purposes of the application of subsection (1) to an electronic communication—

(a)    a party’s place of business is assumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location, and

(b)    if a party has not indicated a place of business and has only one place of business, it is to be assumed that that place is the party’s place of business, and

(c)    if a party has not indicated a place of business and has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the transaction, and

(d)    if a party has not indicated a place of business and has more than one place of business, but paragraph (c) does not apply—it is to be assumed that the party’s principal place of business is the party’s only place of business, and

(e)   if a party is a natural person and does not have a place of business—it is to be assumed that the party’s place of business is the place of the party’s habitual residence.

43. In Mrjana, the Appeal Panel at [33] to [39] concluded, after reviewing the relevant authorities, that in circumstances where a contract is made by electronic communication, it is made at the location at which the acceptance of the offer of contract is received from the offeree by the offeror.

44. In the present case, Aussie Buckets contends that the agreement was made when and where it received Cannonball’s acceptance of its quote, being in Victoria. I agree and find that the agreement was made at Aussie Bucket’s office in Victoria, being the place where it was received by Aussie Bucket.

45. I find that Cannonball also fails under section 79K(1)(c) of the FT Act.

Section 79K(2)(a) of FT Act – Victorian law and jurisdiction clause

46. In the event that I am incorrect in relation to the supply or where the agreement was made, I will consider the submission raised by Cannonball in relation to the Tribunal having jurisdiction pursuant to section 79K(2)(a) of the FT Act.

47. Cannonball submits that the Tribunal has jurisdiction to consider the claim, despite clause 11.2 of the Terms of Trade. Aussie Bucket oppose this submission.

48. Generally, jurisdiction clauses in an agreement cannot oust the jurisdiction of a court or tribunal: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419, [2019] NSWCA 61.

49. In Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418 (‘Akai’), Dawson and McHugh JJ at [427] held:

“the law has always been solicitous when parties do contract to submit their disputes to the exclusive jurisdiction of the courts of another country they should be held to their bargain.”

50. Further, in Akai, Toohey, Gaudron and Gummow JJ at [445] stated, where there is a foreign jurisdiction clause:

“the courts being with a firm disposition in favour of maintaining that bargain unless strong reasons be adduced against a stay, it being the policy of the law that the parties who have made such a contract be kept to it.”

51. In Asciano Services Pty Ltd v Australian Rail Track Corp Ltd [2008] NSWSC 652, Palmer J at [18] stated:

However, regardless of whether a proper law and jurisdiction clause confers exclusive jurisdiction, it carries great weight in determining the appropriate forum in a cross vesting application because it records a term of the bargain between the parties that litigation arising from their agreement will be resolved in accordance with the substantive law of a specified forum and by the courts of that forum: see, for example, per Howie J in Patrick Badges Pty Limited v Commonwealth [2002] NSWSC 221, at [23]. Particularly persuasive is the weight of such a clause in a contract between commercial parties well able to protect their respective interests.

52. On the application of these principles, I find that Cannonball has not shown why it should not be bound by Victorian law and the jurisdiction clauses in the Terms of trade.

Conclusion

53. By reason of the foregoing, I dismiss the application.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 August 2025