Trpkovski v Lastminute.Com.Au Pty Ltd (ACN 091 825 142)

[2020] ACAT 11

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TRPKOVSKI v LASTMINUTE.COM.AU PTY LTD (ACN 091 825 142) (Civil Dispute) [2020] ACAT 11

XD 183/2019

Catchwords:               CIVIL DISPUTE – whether the respondent is the appropriate entity to sue – identification of the respondent – a deregistered corporate respondent – whether there was misleading and deceptive conduct – mere purveyor of advertising – claim for damages for disappointment and distress – application dismissed

Legislation cited:        Australian Consumer Law s 18

Corporations Law 2001 (Cth) ss 601AA, 601AD, 601AH

Subordinate
Legislation cited:        ASIC Regulatory Guide 183 2018 (Cth)

Cases cited:Baltic Shipping Company v Dillon [1993] HCA 4

Hutchison v ASIC [2001] VSC 465
International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017
Selby v Expedia Australia Pty Ltd [2018] ACAT 124

Tribunal:  Senior Member A Anforth

Date of Orders:  13 February 2020

Date of Reasons for Decision:         13 February 2020

AUSTRALIAN CAPITAL TERRITORY           )

CIVIL & ADMINISTRATIVE TRIBUNAL        )          XD 183/2019

BETWEEN:

SASHA TRPKOVSKI

Applicant

AND:

LASTMINUTE.COM.AU PTY LTD (ACN 091 825 142)

Respondent

TRIBUNAL:     Senior Member A Anforth

DATE:13 February 2020

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Senior Member A Anforth

REASONS FOR DECISION

Summary

1.The applicant booked a hotel through travel website for his overseas holiday.

2.The applicant cancelled his holiday via a notification-only email within the timeframe required to obtain a full refund.

3.Whilst overseas on his holiday, the cost of the hotel was removed from the applicant’s bank account by the hotel. It transpired the hotel booking had not been cancelled by the website.

4.The hotel refunded the applicant’s money 10 days later.

5.In the meantime, the applicant alleges he suffered significant distress and disappointment whilst on holidays due to the loss of these funds.

6.The applicant named company Lastminute.com.au Pty Ltd as the respondent and alleged it is liable for substantial damages.

7.The respondent submitted it neither owns nor operates the website Tribunal suffered a degree of confusion between the corporate entity Lastminute.com.au Pty Ltd and the domain site This was a matter that required clarification during and after the hearing.

9.Before the matter was determined by the Tribunal the respondent company was deregistered.

10.Whether or not the respondent was ever the proper respondent, judgment cannot be entered against a deregistered company. This reason alone is sufficient to determine the matter. However, the Tribunal is also of the view that the respondent was never the proper respondent to the proceedings. This is a second reason for dismissing the application.

History of the proceedings in the Tribunal

11.The applicant lodged an application with the ACT Civil and Administrative Tribunal (the Tribunal) against the respondent on 20 February 2019. The applicant claimed the sum of $24,500, the quantum of which was not detailed.

12.The applicant listed the respondent as “lastminute.com.au...ACN: 091 825 142 ABN: 34 091 825 142” or more correctly Lastminute.com.au Pty Ltd.

13.The history of the dispute was described as follows:

(a)The applicant booked the hotel Circus Apartments by BridgeStreet (BridgeStreet), London for a holiday in London through the lastminute.com.au website.

(b)The website included a cancellation condition that the applicant could cancel the accommodation booking by 7 December 2018 for a “Full Refund”.

(c)The applicant cancelled the hotel booking on 5 December 2018.

(d)On 28 December 2018, the sum of $3,523.40 plus $150 conversion rate (a total of $3,673.40) was withdrawn from the applicant’s bank account whilst the applicant was abroad.

(e)The removal of this money left the applicant with limited remaining funds for two weeks, resulting in significant stress and distress for the applicant and “completely ruined our holiday”.

(f)The sum of $3,673.40 was refunded to the applicant by BridgeStreet 10 days after the withdrawal.

14.The application included email correspondence dated 28 December 2018 to 23 January 2019 between the applicant and BridgeStreet detailing the applicant’s distress with the situation. The correspondence included an email forwarded to BridgeStreet, on 5 December 2019 from the applicant to [email protected] stating:

Hello Last Minute
Please cancel this booking.

Please provide refund asap.

15.Attached to the applicant’s email dated 5 December 2019 was an email dated 26 November 2019 from “[email protected]” detailing the applicant’s booking at BridgeStreet for the period 22–29 December 2019. At the end of the itinerary was the following notation:

Please do not reply to this message. This email was sent from a notification-only email address that cannot accept incomingemail (sic)

16.The respondent submitted their response on 29 March 2019. The respondent disputed the applicant’s claim on the following grounds:

(a)The applicant failed to identify the appropriate respondent, as the respondent does not conduct any business through the lastminute.com.au website.

(b)The applicant failed to cancel the hotel booking.

17.The matter was listed for mention on 8 May 2019 and orders were made such that the respondent was to provide further information to the applicant concerning the relationship between Expedia Incorporated and Lastminute.com.au Pty Ltd.

18.On 31 May 2019, the applicant filed an amended application (the amended application), partially particularising the quantum of his claim. The applicant included substantial annexures, including:

(a)emails dated 28 December 2018 to 8 January 2019 between the applicant and BridgeStreet;

(b)a Flight Centre invoice from Canberra to Copenhagen, departure 17 December and returning 14 January 2019. The invoice had a total price of $17,860.48 (if paying by cash).

(c)a current ASIC extract of Lastminute.com.au Pty Ltd, which included the information:[1]

(i)      The company is currently registered.

(ii)     Its ultimate holding company is Expedia, Inc.

(iii)   its current sole shareholder is ACN 079 010 772 Pty Ltd.

(d)a receipt for cash received by Flight Centre from the applicant for the sum of $8,482.50; and

(e)a letter dated 20 March 2019 from the respondent to the applicant to the effect the respondent denied liability.

[1] Lastminute.com.au Pty Ltd 091 825 142, ASIC – lastminute.com.au Pty Limited ACN: 091 825 142 (data extracted from ASIC 14 May 2019 by SAI Global Property)

19.On 4 July 2019, the Tribunal made orders to the effect:

(a)the parties attend a further preliminary conference on 16 August 2019; and

(b)the applicant conduct a business name search for “lastminute.com.au” and a company search for “Expedia”.

20.On 19 July 2019, the applicant submitted a further amended application (second amended application) to the effect that two different bookings had been made through the website and cancelled at the same time via the same address, yet only one booking had effectively been cancelled.

21.The second amended application annexed:

(a)an undated email from the respondent’s representative to the applicant stating:

Lastminute.com.au Pty Ltd ACN 091 825 142 is an indirect, wholly-owned subsidiary of Expedia, Inc. … the sole shareholder of Lastmiunte.com.au Pty Limited is A. C. N. 079 010 772 Pty Ltd ACN 079 010 772 is another indirect subsidiary of Expedia, Inc. and is wholly-owned by Wotif.com Holdings Pty Ltd...the ultimate holding company of Lastminute.com.au Pty Limited is Expedia, Inc.

(b)a partial ASIC current company extract of Lastminute.com.au Pty Ltd ACN 091 825 142;[2]

(c)an ASIC current company extract of Wotif.com.au Pty Ltd ACN 092 257 504, listing Expedia Inc. as its ultimate holding company and principal place of business as Wotif.com Pty Ltd, Level 1, 7 Baroona Road, Milton Queensland 4064;[3]

(d)references to the Selby v Expedia Australia Pty Ltd[4] and Baltic Shipping Company v Dillon[5] cases.

[2] Extracted 15 July 2019

[3] Extracted 16 July 2019

[4] [2018] ACAT 124

[5] [1993] HCA 4

22.The matter was heard on 16 August 2019 and the decision reserved. In reserving the decision, the Tribunal made directions allowing the parties to file further submissions and setting a timetable for filing these submissions.

23.On 4 September 2019, the respondent filed their final submissions adhering to their response. Their submissions contained a number of annexures, including:

(a)the website terms and conditions; and

(b)a screenshot of the WHOis.net results of a search for WHOis.net is a database of records regarding who owns websites and domains

24.On 10 September 2019, the applicant filed his final submissions which adopted his prior claims, detailing a number of allegations.

25.On 23 September 2019, the respondent lodged final submissions in reply to the applicant to the effect of denying liability.

Consideration of the issues

26.A number of issues arose as a result of the dispute between the parties, including potential breaches of Australian Consumer Law,[7] applicability of awarding damages and quantum of damages. The foundational issue, however, that must be addressed first is: who is the proper respondent to this claim?

[7] Australian Consumer Law section 18

27.The applicant identified Lastminute.com.au Pty Ltd as the company with whom he had conducted business via the website. The respondent disputed the relationship, stating Lastminute.com.au Pty Ltd did not conduct any business through the website which the applicant had made his booking at BridgeStreet.

28.Lastminute.com.au Pty Ltd was a registered Australian company[8] until 2 December 2019 when it was deregistered.[9] It was a wholly owned subsidiary of ACN 079 010 772 Pty Ltd, which is a wholly owned subsidiary of Wotif.com Holdings Pty Ltd ACN 093 000 456, which is a wholly owned subsidiary of the ultimate holding company, Expedia, Inc. ARBN 138 063 573.

[8] Lastminute.com.au Pty Limited 091 825 142 (data extracted from ASIC 14 May 2019 by SAI Global Property)

[9] Lastminute.com.au Pty Ltd 091 825 142’, (ASIC, extracted 10 January 2019). The deregistration of lastminute.com.au Pty Ltd leads to questions concerning a potential breach of the Corporations Act 2001 (Cth) section 601AA

29.At all relevant times, the website was owned and operated by Expedia, Inc. The applicant appears to acknowledge the differentiation is his amended application, stating:

lastminute.com.au is an Australian company with Sydney registered office. … Expedia is a USA company that own lastminute.com.au.

30.The identity of the website’s operator is documented in the website’s terms and conditions, which the applicant acknowledged he read and agreed to.[10] The terms read:

Welcome to lastminute.com.au (the “Website”). This Website is operated by Expedia Inc., ARBN 138 063 573 …

[10] ‘Terms and Conditions’, lastminute.com.au (extracted, 15 February 2019)

31.Expedia, Inc. is the registered owner of the domain lastminute.com.au, as shown in evidence submitted by the respondent.[11]

[11] A domain is, in basic terms, the name of a website

32.Although Lastminute.com.au Pty Ltd previously owned and operated the website, it did not do so at the relevant times in this matter. Expedia Inc was both the owner and the operator.

33.The applicant has sued the wrong entity; the respondent is not liable in this matter.

34.Even if the respondent were the proper respondent, the respondent is now deregistered and so judgment cannot be entered against it.[12]

A note on deregistration of Lastminute.com.au

[12] This is not specifically stated within the legislation but follows on logically from the effects of section 601AD of the Corporations Act 2001 (Cth). See also ASIC Regulatory Guide 83 2018 (Cth) and International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017

35.Notwithstanding the respondent is not the proper respondent, the respondent was, at all times during the Tribunal proceedings, a registered company subject to Australian law. Section 601AA(2) of the Corporations Act 2001 (Cth) (the Act) describes circumstances in which an application for voluntary deregistration of a company can be made:

601AA(2)  Circumstances in which application can be made.

A person may apply only if:

(a)     all the members of the company agree to the deregistration; and

(b)     the company is not carrying on business; and

(c)     the company’s assets are worth less than $1,000; and

(d)     the company has paid all fees and penalties payable under this Act; and

(e)     the company has no outstanding liabilities; and

(f)     the company is not a party to any legal proceedings.

36.Section 601AA(4) of the Act provides the deregistration procedure as:

601AA(4) Deregistration procedure.

If:

(a)     ASIC decides to deregister the company under this section; and

(b)     ASIC is not aware of any failure to comply with subsections (1) to (3);

ASIC must:

(c)     give notice of the proposed deregistration on ASIC database; and

(d)     publish notice of the proposed deregistration in the prescribed manner.

37.Notice of Lastminute.com.au Pty Ltd’s proposed voluntary deregistration was published on the ASIC database under subsection 601AA(4) of the Act on 4 October 2019.[13] This means Lastminute.com.au Pty Ltd applied to ASIC for voluntary deregistration around October 2019.

[13] ‘Notice of Proposed Deregistration –– Voluntary’, ASIC Published Notices (Web Page, 4 October 2019)

38.It is evident under subsection 601AA(2)(f) of the Act that a company in the midst of legal proceedings cannot apply for deregistration and lastminute.com.au Pty Ltd infringed this requirement at the time it applied for deregistration.

39.Legal proceedings involving Lastminute.com.au Pty Ltd have been on foot since the applicant filed his application on 20 February 2019. The respondent has been necessarily aware it was a party to legal proceedings since at least 29 March 2019, when it filed its response to the application. The matter remains a legal proceeding until the decision is handed down (and possibly longer, if an appeal is filed).

40.Notwithstanding the finding the respondent is not the proper respondent, the applicant, amongst others,[14] was entitled reasonably to expect the respondent, since it necessarily knew of the existence of the Tribunal proceedings, would do nothing to finalise winding up of the company and cause deregistration of the company while legal proceedings were on foot. That reasonable expectation was not realised.

[14] Including ASIC, the Tribunal and the Australian public

41.The Act provides a company can be reinstated by ASIC if it is satisfied the company should not have been deregistered,[15] or if certain conditions are satisfied.[16] The Act also provides the Court can order the reinstatement of a deregistered company if a person has been aggrieved by the deregistration and the Court is satisfied it is just that the company’s registration be reinstated.[17]

[15] Corporations Act 2001 (Cth) section 601AH(1)

[16] Ibid section 601AH(1A)

[17] Ibid section 601AH(2). See Hutchison v ASIC [2001] VSC 465 [39]

42.Such a process is in the public interest, because it allows provisions of the Act to be properly applied. Furthermore, where a debt is owed or a liability alleged, an applicant should not be deprived of the opportunity to pursue the claim.

43.If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered.[18] Where there is an outstanding liability, the company may be placed back into liquidation and a liquidator appointed to the company. A liquidator could thus exercise powers to prosecute directors for potential offences under the Act.

[18] ASIC Regulatory Guide 83 2018 (Cth) reg 83.10

44.Lastminute.com.au Pty Ltd’s application to ASIC for voluntary deregistration was a breach of the Act. Although in this instance, the respondent was not the correct respondent and thus not liable in any case, companies must be aware deregistration shall not necessarily allow liabilities nor claims against them to cease to exist.

………………………………..

Senior Member A Anforth

HEARING DETAILS

FILE NUMBER:	XD 183/2019
PARTIES, APPLICANT:	Sasha Trpkovski
PARTIES, RESPONDENT:	Lastminute.com.au Pty Ltd ACN 091 825 142
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Bird & Bird
TRIBUNAL MEMBERS:	Senior Member A Anforth
DATES OF HEARING:	30 August 2019