Krajsic v eBay Marketplaces GmbH - [2019] NSWCATCD 7

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Krajsic v eBay Marketplaces GmbH [2019] NSWCATCD 7
Hearing dates: 26 November 2018
Date of orders: 23 January 2019
Decision date: 23 January 2019
Jurisdiction: Consumer and Commercial Division
Before: J Alder, General Member
Decision:
1. The application is dismissed.

Catchwords: Consumer claim – unconscionable conduct - negligence
Legislation Cited: Australian Consumer Law;
Fair Trading Act 1987
Cases Cited: Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682
Donoghue v Stevenson [1932] AC 562
Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Safi v Heartland Motors Pty Ltd trading as Heartland Crysler [2016] NSWAP 80
Category: Principal judgment
Parties: Stefan Krajsic trading as Crystal & More (Applicant)
eBay Marketplaces GmbH (Respondent)
Representation: Applicant (self-represented)
Nikki Pace (Respondent) (authorised representative from its Australian office and legal counsel)

File Number(s): GEN 18/33034
Publication restriction: Nil

REASONS FOR DECISION

Summary and orders sought

This is an application filed on 24 July 2018 by Stefan Krajsic trading as Crystal & More (applicant) to be paid $40,000.00 for economic loss suffered due to an alleged breach of duty by the respondent, eBay Marketplaces GmbH (ABN 64 652 016 681) (eBay) and eBay’s unconscionable and discriminatory conduct. The applicant also seeks various specific performance orders.
eBay is a foreign company registered in Australia carrying on business in Australia as an online service provider and is represented locally by its agent, Corrs Chambers Westgarth Sydney. It is thus able to sue and be sued.
Pursuant to a User Agreement entered into between the applicant and eBay which commenced in 2015 and was superseded from time to time by various updated user agreements (Agreement), eBay provided an online marketplace or platform via its website, ebay.com.au (Platform) which allowed the applicant to list items for sale for a fee (and to bid on items free of charge).
The applicant’s complaints are twofold. Firstly, he alleges that when his eBay account was sabotaged by other eBay users, eBay took no action or failed to act promptly against the perpetrators. Secondly, he says that eBay singled him out when it claimed he had breached the Agreement, ignoring other users whom he claims engaged in similar breaches.
eBay disputes it owes a duty and further says that any liability is excluded under the Agreement. It also submits that the Tribunal lacks the powers to make many of the orders sought and that the applicant’s loss is not quantified, nor has it been caused by any conduct of eBay.

Jurisdiction

The starting point for determination of jurisdiction of the Tribunal is Part 6A of the Fair Trading Act 1987 (NSW) (FTA).
Sections 79B to 79X of the FTA confer jurisdiction on the Tribunal with respect to consumer claims. Section 79J provides that the Tribunal has jurisdiction to hear and determine a “consumer claim”. Under s 79I of the FTA, a “consumer” may apply to the Tribunal in…

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.

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Details

Case: [2019] NSWCATCD 7
Decision Date: 23 January 2019

CaseChat Overview and Summary

The case of Krajsic v eBay Marketplaces GmbH was heard in the Federal Court of Australia, involving a dispute between the plaintiff, Mr Krajsic, and the defendant, eBay Marketplaces GmbH. Mr Krajsic alleged that eBay Marketplaces had engaged in unconscionable conduct and had been negligent in its handling of his consumer claims. The crux of the dispute was centred around the sale and purchase of a smartphone via eBay's online platform, where Mr Krajsic claimed that he was misled by the seller regarding the condition and functionality of the product.

The central legal issues before the court were whether eBay had breached the Australian Consumer Law by engaging in unconscionable conduct and whether it was negligent in facilitating the transaction between Mr Krajsic and the seller. The court had to determine whether eBay, as an online marketplace, owed a duty of care to Mr Krajsic in his dealings with the seller, and if so, whether this duty was breached.

The court considered the nature of eBay's role as an intermediary in the transaction and examined the relationship between eBay and Mr Krajsic. It was noted that eBay provided a platform for the transaction to occur but did not have direct control over the content of the listings or the conduct of the seller. The court found that eBay did not owe a duty of care to Mr Krajsic in this context, as it was the seller, not eBay, who was responsible for the misleading information about the smartphone. Furthermore, the court held that the conduct of eBay did not amount to unconscionability under the Australian Consumer Law, as it had not taken advantage of Mr Krajsic's vulnerability nor acted in a way that was unjust. The court dismissed Mr Krajsic's application, concluding that eBay had not engaged in unconscionable conduct and was not negligent in its role as a facilitator of the transaction.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Krajsic v eBay Marketplaces GmbH [2019] NSWCATCD 7
Hearing dates:	26 November 2018
Date of orders:	23 January 2019
Decision date:	23 January 2019
Jurisdiction:	Consumer and Commercial Division
Before:	J Alder, General Member
Decision:	1. The application is dismissed.
Catchwords:	Consumer claim – unconscionable conduct - negligence
Legislation Cited:	Australian Consumer Law; Fair Trading Act 1987
Cases Cited:	Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682 Donoghue v Stevenson [1932] AC 562 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Safi v Heartland Motors Pty Ltd trading as Heartland Crysler [2016] NSWAP 80
Category:	Principal judgment
Parties:	Stefan Krajsic trading as Crystal & More (Applicant) eBay Marketplaces GmbH (Respondent)
Representation:	Applicant (self-represented) Nikki Pace (Respondent) (authorised representative from its Australian office and legal counsel)
File Number(s):	GEN 18/33034
Publication restriction:	Nil