Mallah v Ebay Australia and New Zealand Pty Ltd

[2016] NSWCATCD 38

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mallah v Ebay Australia and New Zealand Pty Ltd [2016] NSWCATCD 38

Hearing dates:

3 March 2016

Decision date:

03 May 2016

Jurisdiction:

Consumer and Commercial Division

Before:

P French, General Member

Decision:

1. Leave is granted for the First and Second Respondents to be legally represented.

 

2. The Applicant’s claim against Ebay Australia and New Zealand Pty Ltd is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.

 3. The Applicant’s claim against eBay International AG is dismissed on the basis that it is lacking in substance.

Catchwords:

Consumer Claim

Legislation Cited:

Fair Trading Act (NSW)1979
Australian Consumer Law (NSW)
Civil and Administrative Tribunal Act 2013

Category:

Principal judgment

Parties:

Zeky Mallah (applicant)
Ebay Australia & New Zealand Pty Ltd (first respondent)
Ebay Intenational AG (second respondent)

Representation:

Applicant in person

 

Counsel: Ms Shoshana Shields, General Counsel, Ebay Australia & New Zealand Pty Ltd

  Solicitors: Ms Jennifer Crawford, Norton Rose Fulbright, eBay International AG

File Number(s):

GEN 15/68000

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Zeky Mallah (the Applicant) for an order from the Tribunal pursuant to sub-section 79N(a) of the Fair Trading Act 1987 (FT Act) that will require Ebay Australia & New Zealand Pty Ltd (First Respondent) and/or eBay International AG (Second Respondent) to pay him compensation for damage and loss he claims to have incurred as a result of a decision of one or both Respondents to suspend his sale by auction on the eBay website of a cap which had featured in an exchange between him and a Federal Parliamentarian on an episode of ABC TV’s Q & A program. This application was made to the Tribunal on 23 December 2015 (the Application).

2. For the reasons which follow, I have determined that this Application as against the First Respondent must be dismissed on the basis that the impugned transaction did not involve any supply of services to the Applicant by the First Respondent. The Applicant’s claim as against the First Respondent is therefore not a consumer claim and the Tribunal therefore has no jurisdiction to deal with it.

3. I have determined that this Application as against the Second Respondent must be dismissed on the basis that it is lacking in substance, the Applicant having not proved to the Tribunal on the balance of probabilities that the Second Respondent breached its eBay User Agreement with him in suspending his eBay account. The Second Respondent was entitled to suspend the Applicant’s account because the Applicant was in breach of the User Agreement at the material time, having failed to pay a debt owed on another of his eBay accounts.

Procedural history

4. This Application was first listed for conciliation and hearing before the Tribunal on 19 January 2016. The Applicant and a representative of the First Respondent attended that listing of the matter. Efforts of the parties to resolve the dispute by conciliation with the assistance of a Tribunal conciliator were not successful.

5. When the matter returned to the Tribunal for hearing, the Tribunal made an order, by consent, joining the Second Respondent as a party to the proceeding. It otherwise adjourned the matter for hearing and gave directions to the parties for the exchange of evidence.

6. At this first listing of the Application, the First and Second Respondents sought leave of the Tribunal to be legally represented. Pursuant to section 45 of the Civil and Administrative Tribunal Act 2013, the general rule in proceedings such as these is that the parties have the carriage of their own case and are not entitled to be represented unless the Tribunal grants leave for a party to be represented.

7. In this context the Tribunal made orders requiring the parties to file and exchange submissions as to whether or not leave ought to be granted. However, perhaps as an oversight, the Tribunal did not provide a mechanism for this question to be determined prior to the substantive hearing of the Application.

Leave for legal representation

8. The First Respondent’s General Counsel (Ms Shields) and a solicitor acting for the Second Respondent (Ms Crawford) attended the hearing. No other representative of either Respondent attended. Ms Shields told the Tribunal that the Respondents had filed and served submissions in support of leave being granted for legal representation in accordance with the Tribunal’s directions. However, no submissions were at that time on the Tribunal file. The Applicant also denied receiving any submissions from the Respondents in support of their request for leave to be legally represented.

9. In support of the First Respondent’s application for leave to be legally represented, Ms Shields submitted that the First Respondent was an incorporated body that could only act through its authorised officers and representatives. She also contended that the Application involved consideration of complex issues of fact and law and that in these circumstances the Respondents would be subject to a disadvantage unless they were legally represented.

10. In support of the Second Respondent’s application for leave to be legally represented, Ms Crawford submitted that the Second Respondent was a company registered in Switzerland and had no office or staff in Australia. She submitted that her firm of solicitors is the Registered Office for the Second Respondent in Australia and had carriage of all disputes concerning the Second Respondent in Australia.

11. The Applicant initially opposed the Respondents’ applications for leave to be legally represented. He contended that this would give the Respondents an unfair advantage over him, because he was not, and could not afford to be, legally represented at the hearing. However, the Applicant later withdrew his objection on the basis that, if it were pressed and the Tribunal determined not to grant leave, there would be no alternative to the Tribunal adjourning the matter for hearing at another time when appropriate non-legal representatives of the Respondents could attend. The Applicant told the Tribunal he wanted the hearing to proceed.

12. Against this background, the Tribunal granted leave for the Respondents to be legally represented. It did so to avoid delay in finalising the Application, having regard to section 36 of the NCAT Act which provides that the guiding principle to be applied in all aspects of the Tribunal’s practice and procedure is the just, quick and cheap resolution of the real issues in dispute. The Tribunal did not grant leave on the basis that the Application disclosed factual and legal complexity. Nor does the Tribunal accept that either Respondent was unable to act except through its lawyers.

The evidence

13. The Applicant filed a folder of evidence which was tendered without objection and marked A1. The Applicant also gave oral evidence under affirmation. The Second Respondent filed detailed written submissions attached to which was the following documentary evidence which was tendered without objection: an eBay User Agreement (marked SR1); a copy of the Applicant’s eBay listing (marked SR 2); a copy of the bidding history associated with this listing (marked SR3); a copy of the suspension notice it sent to the Applicant (SR4); and, a copy of extracts of its policies (marked SR5).

The parties

14. The Applicant has a public personality that arises from him being the first person to be arrested and charged under Australia’s ‘terrorism laws’ in 2003. Following his arrest he was held in detention in a maximum security prison for a period of two years where he claims to have been grossly mistreated. He was subsequently acquitted of those charges in 2005. He has been the subject of much media, political and public commentary. This background is material to this Application for the reasons that follow.

15. The First Respondent is an Australian wholly owned subsidiary company of eBay International AG. It provides a range of business services in support of eBay International AG’s operations in Australia.

16. The Second Respondent is a company registered in Switzerland which conducts a retail and auction website known as “eBay.” Individuals and businesses (vendors) use the site to sell goods to others. Depending upon the scale of selling activity, the vendor may pay eBay a fixed price “listing fee.” The vendor also pays a commission fee on the sale of each item. Users of eBay must accept an “eBay User Agreement” prior to using “eBay services.” “eBay Services” are defined in the eBay User Agreement to mean “the eBay.com.au website and any related service or tool.”

Factual background to the dispute

17. On 22 June 2015 Mr Mallah attended as an audience member for an episode of ABC TV’s Q & A program. He was authorised to ask a pre-approved question of a Federal Government Minister, Mr Ciobo, MP who appeared as part of the panel for that episode of the program. The question related to the Federal Government’s then proposed changes to citizenship laws which would have removed citizenship from persons suspected of involvement in terrorism. This question sparked a heated exchange between Mr Ciobo and Mr Mallah which generated sustained political and public controversy over a number of days about Mr Mallah’s appearance on the program. Participants in this controversy included the then Prime Minister, Mr Abbott, a number of other Ministers, radio personalities and media commentators.

18. During the filming of the Q & A episode, Mr Mallah wore a black cap with a Cannabis leaf motive in the area of the forehead. Mr Ciobo subsequently wrote an opinion piece for a newspaper in which he referred to Mr Mallah as a ‘dope.’ The association of this description with Mr Mallah’s cap was the subject of humorous comment in social and other media.

19. On 20 December 2015, the Applicant listed this cap for sale on eBay. That listing had the title “Zaky Mallah QandA Weed hat” and it included the following “Item Description”:

Here it is. The weed hat. The one you have been waiting for. The Zaky Mallah hat from QandA. You all know enough about this hat, so I won’t write an essay. This hat works wonders in politics once its worn. This hat has magical powers to disrupt live television to the point where NewsCorp papers put you on the front page with the front heading “Terror Vision.’ Enough powers to make you a star!!

I purchased this SnapBack hat from Thailand Phuket in 2014 at Patong beach.

The weed hat transformed my political intellect capability into ‘challenge mode’ to debate liberal MP Steven Ciobo on the citizenship laws on live television. After asking my question, Ciobo replied: “I’ll be happy to be a part of a government that said you were out of the country.”! God bless this MP (holy water thrown at face).

Ciobo called me a ‘dangerous man’ on Sky News and a ‘dope’ in an opinion piece he wrote for the Daily Tele. Get it? ‘dope’ (as in weed). Loll. More holy water thrown …

I will sign this hat to the highest bidder. Whatever this magical hat sells for, will contribute to buying some food and water for the homeless in Parramatta (Church st), pay some bills, and shout out Steven Ciobo to a nice lunch to finally end our horrible political beef. I think it’s time to kiss and make up. If he is up for it.

Let the bidding begin…

20. A number of media outlets reported Mr Mallah’s listing of the cap on eBay for sale on or about 20 December 2015, including Channel 10 News, My TV, and the Daily Mail Australia. Some of these reports included a URL link to the eBay listing.

21. The auction listing of the cap activated at 10:30am on 21 December 2015. The bidding for the cap started at $60.00. Eight bids were placed by four bidders. Within less than one hour bidding reached $91,983.00. The Applicant also received an offer to purchase the cap for $100,000.00 if he ended the auction from another eBay member via this eBay listing.

22. Shortly after bidding commenced, when bidding reached $2,240.00, the Applicant says he became concerned that two of the participating bidders were ‘fake.’ The Applicant’s suspicion appears to have arisen from the rapidity of the bidding and the amount of the bids being placed. He contacted eBay via Twitter to report what he considered to be ‘fraudulent bidding.’

23. This report resulted in eBay’s Trust and Safety Unit intervening and removing the listing. Two emails were sent to the Applicant in short succession explaining the reasons for the removal of the listing. The first of those emails states as follows:

Hello qanmalzac

After reviewing your eBay account, it looks like you haven’t followed our policy. We understand that you may not have been aware of our policies or that this may be an oversight.

Unfortunately we had to take the following actions:

- Listings that didn’t follow our policies have been removed. A list of removed items is available further down in this email.

- We have credited all associated fees except for the final value fee of your listing(s).

Your listing violated our Gratuitous Comment Policy. We understand that it was never your intention to violate our polices, however, please be advised that we encourage our sellers to avoid the use of unrelated words that has nothing to do with the item for sale or putting negative comment/phrases that may harm the community. eBay’s position on this is that we want all our members feel safe to visit and trade without the fear of another member posting negative comments in listings. You are welcome to relist the item provided that you will take the necessary corrections. Fees associated will be credited to your account.

If you have any concerns or questions, click “Help & Contact” at the top of most e-Bay pages.

Please be sure your current and future listings follow these guidelines. If they don’t. they’ll be removed and your fees won’t be refunded. It could also result in additional actions, including loss of buying and selling privileges on eBay.

Here are the listings that were removed:

321953418122 – Zaky Mallah QandA Weed hat

We appreciate your understanding.

24. The second of the emails states as follows:

Hi Zaky

This is a courtesy email regarding your listing “321953418122” which we have decided to remove on the site since it has violated our Gratuitous Comment Policy.

We understand that it was never your intention to violate our policies. However, please be advised that we encourage our sellers to avoid the use of unrelated words that has nothing to do with the item for sale or putting negative comment/phrases that may harm the community. eBay’s position on this is that we want all our members feel safe to visit and trade without the fear of another member posting negative comments in listings.

On the other hand Zaku, also mentioned in your item description that the proceeds will be donated to a Charity institution which requires you a written consent. Charitable fund-raising is closely regulated by the government and is subject to various Australian laws. As a result, compliance with all applicable legislation is mandatory. In the majority of Australian states you or your organisation must be registered as a licensed charity in order to conduct charitable fund-raising activities.

For more information about Charity or Fund-raising Listings please check out this link: [link provided].

We have also temporarily restricted your account because the system had detected that you have the same contact information and contact information (sic) with a suspended account, snipeau_pljh0sm.

Please know that we don’t allow suspended members to use sBay or register new accounts unless they have already resolved the issues with their other account. To find more about this policy visit [link provided]

With this Zacky, we would need you to resolve snipeau_pljh0sm first before we will process the reinstatement of the said account. For you to appeal on the suspension of snipeau_pljh0sm you need to pay the balance of AU $15.34. You may contact us using the registered email on that account t (sic) further help you with your appeal.

Your patience and cooperation on this matter is highly appreciated.

25. The Applicant did not respond to either email. He did not pay the $15.34 balance owed on his related snipeau_pljh0sm account. He did not attempt to relist the item on eBay. He has not attempted to sell the cap by any other means and it remains unsold at the date of the hearing.

26. Sometime after these events, the Second Respondent also identified a third eBay User account held by the Applicant which has the eBay user ID ‘zacmalah’. This account was also suspended as the Applicant has owed unpaid fees to the Second Respondent in the amount of $190.27.

The claim

27. The Applicant claims, in effect, that by suspending the listing of the cap, the Second Respondent breached the eBay User Agreement that subsisted between them causing him damage and loss in the amount of $30,000.00. The quantum of loss alleged is said to be based upon what the cap is likely to have sold for had the listing continued to the end of the auction.

Jurisdiction

28. The Applicant seeks to pursue his claim as a consumer claim under Part 6A of the FT Act. A “consumer claim” is defined in section 79E of the FT Act. It includes, relevantly, a claim by a consumer for payment of a specified sum of money that arises from a supply of goods or services by a supplier to the consumer whether or not under a contract.

29. The Applicant asserts he is a consumer and by operation of section 79H(a) of the FT Act he is presumed to be so unless the contrary is proved. Neither Respondent has sought to prove that the Applicant is not a consumer.

30. The First Respondent is the supplier of business services to the Second Respondent. On the evidence before me, the First Respondent was not, at the material time, a supplier of services to the Applicant. The First Respondent’s involvement in this matter appears to have been limited to liaison with the Second Respondent in relation to its management of, and response to, the Applicant’s notification of alleged fraudulent bidding. The Applicant’s claim against the First Respondent must therefore fail on the basis that it does not arise from a supply of goods or services by a supplier to the consumer as required by section 79E(1) of the FT Act. Nor does it arise from a contract that is collateral to the contract for the supply of goods and services as required by that section.

31. The Second Respondent did supply services to the Applicant under a contract (or agreement) at the material time, being the eBay User Agreement, as those services are defined in the eBay User Agreement. As noted above those services were the use of the eBay website and related services and tools. In this respect, for the purpose of establishing a consumer claim, the term “services” is defined in section 79F(1) of the FT Act to include, relevantly, (in subsection (i)) “benefits and facilities that are provided in trade and commerce.” I am satisfied that eBay services provided to the Applicant fall within the scope of that definition.

32. Section 79K of the FT Act requires that there be some relevant connection between New South Wales and the supply of the services for this Tribunal to have jurisdiction to deal with the Applicant’s claim. In this respect am satisfied pursuant to section 79K(1)(a) that such a connection exists because the Second Respondent supplied its services to the Applicant in New South Wales, this being the jurisdiction in which the Applicant is located. In this respect it does not matter that eBay International AG is based in Switzerland.

33. A consumer claim must also be brought within the time periods allowed by section 79L of the FT Act. The Applicant’s claim has been brought within the time period allowed.

34. I am therefore satisfied that I have jurisdiction to deal with the Applicant’s claim against the Second Respondent as a consumer claim under Part 6A of the FT Act. However, the Applicant’s claim against the First Respondent must be dismissed as the Tribunal lacks jurisdiction to deal with it.

Australian Consumer Law (NSW)

35. Section 28 of the FT Act provides that the Australian Consumer Law is a law of this jurisdiction (ACL NSW). It is to be applied, as relevant, in the determination of a consumer claim under Part 6A of that Act. The ACL NSW incorporates, among other things, in Chapters 2 and 3 respectively a number of general protections and a number of specific protections for consumers in consumer transactions. These include a number of enforceable consumer guarantees that are implied into consumer transactions.

Consideration

36. For the Applicant’s claim to succeed he must prove on the balance of probabilities that the Second Respondent breached the eBay User Agreement in suspending the sale of his cap. This requires consideration both of the terms of the Agreement and the consumer protections that pertain to it.

37. The Applicant contacted the Second Respondent to report alleged ‘fraudulent bidding.’ This prompted an investigation by the Second Respondent’s Trust and Safety Unit, which does not appear to have resulted in any conclusion being reached as to whether these bidders were acting improperly or not. Indeed, there is no evidence before the Tribunal that the Second Respondent’s investigation focused at all on the alleged fraudulent bidding.

38. The evidence before the Tribunal suggests instead that the Applicant’s contact with the Second Respondent triggered an investigation focused on him and his auction listing. This may have initially been part of the ordinary course of events: that is, one might expect that eBay would first establish the bona fides of an eBay member before acting on a complaint made by that member.

39. However, it does appear that the matter quickly escalated from there to a focus on the Applicant and his listing and not on his complaint. There is no evidence before the Tribunal that assists it to understand with any degree of certainty how or why this happened.

40. The Applicant submits that his name and the events associated with the cap must have been recognised by an officer of the Second Respondent. He also suggests that there may have been complaints made to eBay by third parties who became aware of the listing because of the media coverage associated with it. The Applicant has no evidence to support either contention.

41. The Respondents’ legal representatives contend that the Applicant’s notification and the listing were dealt with at face value. They say that nothing lies behind the stated reasons for the suspension of the listing. In support of their contentions, the Respondents’ legal representatives also say that the Trust and Safety Unit that dealt with the Applicant’s notification is based in the Philippines and that its staff would know little, if anything, about Australian domestic politics. Notwithstanding these submissions, the First Respondent’s legal representative says that she was on leave at the time and did not know precisely what occurred. With respect, this is one of the difficulties of legal representatives attending the Tribunal in the absence of any person actually involved in the events.

42. It is, frankly, difficult to believe that the Applicant’s notification of alleged fraudulent bidding would trigger an investigation by the Second Respondent of him and his listing, and not of the alleged fraudulent bidding, absent any other factor. However there is nothing in the evidence before the Tribunal to prove the existence of any other factor.

43. Even if there were, it is unlikely that proof of the existence of any such factor or factors would change the outcome of this Application for the reasons that follow.

44. The Second Respondent asserted three breaches of the User Agreement by the Applicant and his listing. These alleged breaches arise from the Applicant’s alleged failure to comply with eBay policies which are incorporated into the eBay User Agreement under a term of that Agreement.

45. Clause 9 of the eBay User Agreement provides, among other things, that:

[eBay] may, without notice to you and in our sole discretion (which shall be exercised reasonably, having regard to the circumstances), delay listing your item, issue a warning, restrict your activities through our site (including but not limited to buying, selling and posting activities), temporarily suspend or terminate your membership and refuse to provide our services to you if:

you have, or we believe that you have, breached this Agreement, which includes any of our Policies in any way …

…

If we reasonably believe that any of your information (which includes an item listed on the site) is inappropriate or of an offensive nature.

…

46. The first alleged breach relates to the Second Respondent’s “Item description policy”. This appears to be the foundation for the “gratuitous comment” ground cited by the Second Respondent in its initial emails to the Applicant following suspension of his auction listing. That policy provides, among other things, that an item listing must only describe the item being sold and the terms of the sale and not contain “inappropriate or offensive opinions or comments about other eBay members” or “political views, public service announcements, or other content that does not relate to the sale of an item.”

47. On behalf of the Second Respondent Ms Sheilds contended that, pursuant to this policy, the Applicant was only permitted to describe the mere cap he was offering for sale. She says he was not permitted to associate the cap with his appearance on Q&A and the events which followed. If this argument were to succeed it would mean that a cricket bat signed by a famous cricketer or a jersey once worn by a famous Rugby player could not be offered for sale on eBay with any information connecting it to the cricketer or Rugby player. I do not accept that this is a fair and reasonable construction of the policy. I am satisfied that the history of the cap does reasonably form part of the description of the item.

48. Additionally, Ms Shields contended that the item description contained inappropriate or offensive opinions and political views. I accept that the item description connects the cap with political events, however, on any fair reading, I cannot see that expresses political views, other than perhaps stating a political view Mr Ciobo expressed in the past; that is, this part of the description is really that of an historical fact. The Applicant does not express any political view in the item description. He is a political personality, but this does not render everything he says or writes political comment.

49. Moreover, I am not satisfied that there is anything inappropriate or offensive in the item description. In any event this provision of the eBay User Agreement relates to comment about other eBay members. There is no evidence before the Tribunal that Mr Ciobo is an eBay member.

50. The description does refers to serious issues about which members of the community hold strong views, but there is nothing inappropriate or offensive about those views, or the holding of those views, in an open society, such as Australia.

51. In my view, if these terms of the eBay User Agreement were to be construed in the manner contended for by the Second Respondent they would be void pursuant to section 23(1)(a) of the ACL NSW on the basis that they are unfair, as that term is defined in section 24(1)(b) of the ACL NSW, in that they are not reasonably necessary to protect the legitimate interests of the Second Respondent.

52. For the foregoing reasons, I am not satisfied that the Second Respondent was entitled to suspend the Applicant’s auction listing of the cap on the basis of its “Item description policy.” Its basis for doing so was not a reasonable exercise of its discretion under clause 9 of the eBay User Agreement.

53. The Second Respondent contends that the Applicant’s listing also breached its Charity and Fundraising Policy. This policy requires that an eBay member who wishes to raise money for charity must include the charity’s tax-deductibility status and its Australian Charities and Non-Profits Commission registration number.

54. At the hearing of the Application the Respondents’ legal representatives conceded that the Applicant’s reference to making a donation to charity from the sale price of the cap in the item description could not reasonably be construed as an attempt to raise funds on behalf of a particular charity. That was a proper concession. I am satisfied that the Applicant’s item description makes it clear that he will be the beneficiary of the proceeds of the sale of the cap out of which he intends to do several things, including making a donation to charity.

55. The Second Respondent’s Charity and fundraising policy is not engaged by the item description. It did not provide a proper basis for the suspension of the Applicant’s listing.

56. The third basis upon which the Second Respondent suspended the Applicant’s listing was its “Using Multiple Accounts Policy.” This policy prohibits an eBay user from registering a new account to avoid buying and selling restrictions imposed on earlier accounts opened by the same user.

57. At the time it suspended the Applicant’s auction listing, the Second Respondent had identified that he had another account in relation to which there was unpaid debt owed of $15.34. It was later discovered that the Applicant had another account in relation to which there was an unpaid debt owed of $190.27.

58. The Applicant does not dispute the existence of these other accounts or the debts that are associated with them. He says that, for various reasons, he lost track of these accounts.

59. The Applicant’s answer to the Second Respondent in relation to this basis for the suspension of his account is that it was a mere pretext for the suspension, and that the real reason was his political notoriety.

60. The difficulty for the Applicant is that whatever may have triggered the Second Respondent’s decision to scrutinise his user account, it was at all times entitled to do so, and it was at all times entitled to insist that the Applicant conduct himself and the listing in accordance with the terms of the User Agreement.

61. Moreover, (referring only to the Applicant’s breach of the Multiple Accounts Policy), the Second Respondent’s response to the breach was not disproportionate or otherwise unreasonable. In effect, the Second Respondent demanded specific performance from the Applicant; that is, that he settle his debt in relation to another account before trading under a new account. The Second Respondent’s email to the Applicant explicitly states that the account under which he sought to conduct the auction of the cap would be reinstated if his related account fees were paid.

62. There is no dispute that the Applicant refused or failed to pay his related account fees at the material time, and that he has not done so to date.

63. Had he done so, and had the Second Respondent then persisted in its refusal to list the cap for sale on the basis of its other stated reasons for suspending the sale, the Applicant’s position may now be different. However, at the material time, the Second Respondent was fully entitled to suspend the Applicant’s account pursuant to clause 9 of its User Agreement on the basis that the Applicant had contravened its Using Multiple Accounts Policy.

Conclusion

64. For the foregoing reason the Applicant’s claim cannot succeed. He has not established that the First Respondent supplied him with services at the material time. His claim against the First Respondent is therefore not a consumer claim, and the Tribunal consequently has no jurisdiction to deal with it.

65. The Tribunal does have jurisdiction to deal with the Applicant’s claim as against the Second Respondent as a consumer claim. However, ultimately, the Applicant has not established that the Second Respondent was in breach it is User Agreement in suspending his account, either according to the terms of that Agreement, or having regard to the consumer protections that pertain to that Agreement under the ACL. It was the Applicant who was in breach of the User Agreement at the material time and the Second Respondent was entitled to suspend his account on that basis.

P French

General Member

Civil and Administrative Tribunal of New South Wales

3 May 2016

*****

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: 06 July 2016