Commercial law, litigation, contracts, IP, property law
Bowmanni...I am of the view (I am not legally trained however so you will most probably would have to instruct a solicitor) that your complaint should be with Ebay not the seller. To all intents and purposes....you are the consumer and Ebay is the "retailer". You would have to find out whether Ebay for the purpose of the consumer laws is regarded as a "retailer". I am not certain. You live in Victoria....you should contact the Victorian equivalent of the NSW Fair Trading Department...you have one in every state of Australia...it's only the name that is different..in Victoria it may be Consumer Affairs or something similiar.
Now if Ebay is NOT regarded as a "retailer" for the purposes of the consumer laws....then you would need to seek civil action in order to recover that money where you'd have to instruct a solicitor
.....I am responding to my own post here..in a way..but I am doing so to inform that I made further enquires at the Department of Fair Trading here in NSW...as this issue intrigued me as well. Ebay as far as I know (I have never used it) charges a fee (as proportionate and as in accordance with the amount due) for it's services and I was wondering that due to this it's duty of care would be similiar to that of a "retailer" where it is giving similiarly a...... "service"
Well as it turns out Ebay is not regarded as a"retailer' for the purposes of the consumer laws...but as an "auction place" where customers use it quote "at their own risk". So I suppose any anomaly which may arise would have to be resolved between the customers concerned
I reached the same conclusion about Ebay's liability.
Would it be worth contacting a solisitor given the amount owing is $690? I'd imagine that amount could get eaten up in legal fees fairly quickly!
Any advice on how I could obtain her residential address (legally)? The justice department site stipulates that I need a residental address to lodge this type of civil claim.
Bowmanni...if you are not taking any action legal or otherwise, as you said to recover 690 dollars..I would suggest just to completely forget about chasing it up, move on, and put it down as an "error of judgement" on your part.Should you take this course the most important thing then would be to LEARN from this and do not let it happen again.....as the old adage says" First time their fault....second time (that it happens)..my fault"
The reason I had my doubts with Ebay is because it charges a fee for a SERVICE provided. This is similiar to say...a carpenter...an electrician....a plumber etc. Say any one of them charges you a fee for service provided...and it is not provided..or is not provided appropriately....then they are liable under the consumer laws. I believed that anytime an entity charges a FEE for a service...that is that service is not FREE or GRATIS...then that entity has to be of reasonable fairness and has the duty of care to provide that service wholly and appropriately
hello to every1,
sorry for intruding on this thread but i couldn't find the button to post a "new thread" can a mod please move this to a new thread. thanks.
i am currently seeking advice on getting a refund for a course i signedup for. if any1 knows Australian law perhaps they can help me. I wantedto find out about a course so i sat down with a guy called Danny whowas in charge of enrollments etc. When we discussed the price, ithought he said the course was $1295. so i signed up and then when iwent to pay using my credit card he punched in $12995 and got me tocheck it and press enter. i checked but, only a quick look and pushedenter then i looked again and realized it was $12995 i just pushed"enter" to. i then said "hold on i think u maid a mistake thats$12995". i didn't sign the credit card docket and handed it back tohim. he said yes, thats the price of the course. he then offered theother payment options (that we'd discussed prior) of a either a studentloan or "pay as you go". I made a stupid mistake and decided to goahead with the course. he then tried to refund the $12995 through histerminal but failed. then we both spent 4hrs on the phone to Westpactrying to sort out the refund. while he was on the phone he triedsmaller amounts, $5k refund - failed, 1k refund - successful, so he didanother 1k refund - successful, a 3rd attempt at 1k failed. afterspending the 4 hours on the phone Westpac said they would refund thedifference ($10995) from their end. i then paid a 10% deposit ($1295)for the course and purchased a text book. i then went to their classfor the last 2 hours of a 6 hr lesson. here is their refund policy:-
is there any way around this contract? any advice would be helpful.
"1) I know the seller's full name & DOB, but not her residential address
(Which she won't provide)"
"2) I live in Victoria and she resides in NSW. Is there a process to make a
civil claim interstate? I couldn't find any info about this on the VIC
Deparment of Justice website."
Firstly, ebay only facilitates the formation of contracts between a buyer
and seller so your dispute is with the seller.
For a contract to be formed there has to be an offer and acceptance. The
jurisdiction in which acceptance occurs will be the jurisdiction in which
the contract is formed.
Normally an offer and acceptance will occur in the same jurisdiction so
there is no doubt which law applies
Where contracts occur over the telephone, internet or by mail things get a
In your case the seller made an offer in NSW but because her offer was
made at auction she had already agreed to accept the highest bid.
Therefore, acceptance was automatic when you made the highest bid. As
you bid in Victoria acceptance occurred in Victoria. Thus the law
applicable to your contract is Victorian law. You can therefore sue in a
Victorian court and serve the claim interstate using the Service and
Execution of Process Act 1992 (Cth).
Now as the seller resides in NSW you could also sue there but my guess is
that you don't want to.
Finally, you need a street address to serve the process upon her and
there are a number of methods to do this.
The rules of court can compel a third party such as ebay to reveal the
street address of a user or alternatively you can ask the court, after you
have exhausted other methods, for an order for substituted service so
you can serve process on a PO Box or a relative.
I hope I have been of some help.
Thanks for a very informative post. Your advice on jurisdiction is in line with what I have spoken "Debt Collector" about via a phone call.
I will post a more lengthy reply with the outcome of proceedings in due course - Hopefully in a month or two.
There just isn't much information out there on the net about civil law and how it applies to interstate electronic commerce (at least not in an easy to digest format for us legal bunnies).
Hi notguilty (and bowmanni),
Just about to take an ebayer to court. (me SA. they NSW.) I've just read a judgement( ??) in a similar case http://www.lawlink.nsw.gov.au/scjudgments/2007nswsc.nsf/0000 0000000000000000000000000000/8f8790278a4ab31cca25732b002511e 8?opendoxent
where it seems the plaintiff is in SA and defendant in NSW, however the matter went before NSW court.
Any thoughts, and do you have any precedents relevant for your post regarding jurisdiction.
Thanks in advance.
p.s. good luck bowmanni.
Hi Soxy, I've read the case that you referred to. There was no dispute re
jurisdiction as it was agreed that NSW law applied.
There was discussion regarding the aircraft being flown from Albury to SA
but thats it. There is no indication in the judgment that the plaintiff
actually bid in SA.
If you won the bid in SA, then you can sue in a SA court. If the defendant
resides in NSW then you can also sue there. On the other hand, if you are
the seller, NSW law will apply and you will have to sue there.
It is not uncommon for sellers to specify the law applicable to an auction
contract. This can be done in the auction terms and conditions and will
be binding on the parties. For example, "This contract is governed by the
laws of the Australian Capital Territory and you agree to submit to the
jurisdiction of the courts of the Australian Capital Territory should a
Soxy, good luck with your case too. Let us know how it pans out.
AdamJay: Yes they still do offer buyer protection. Silly me for paying by direct transfer on such a high value item when the seller refused to accept Paypal.
As for my situation, the Debt Agency I was dealing with decided not to pursue my debt. I've decided not to lodge a civil case against the seller yet until a criminal case against the seller's supplier goes through the NSW courts later in the year. The Constable in charge of the investigation suggested money may be recovered from a frozen account in due course, but it's uncertain how far that may stretch amongst dozens of affected buyers.
I have a very similar problem. I paid $1200 dollars for a 'sold 9ct gold' bracelet on ebay. Acid tests revealed it to be not 9ct. The seller agreed to a refund, then refused. then agreed. You get the idea. She now is just ignoring me and keeping the money. Ebay will not help as I paid cash into the sellers account. The seller will not give me a phone number or address, though I have a post office box and phone nember for her sister. The seller is in QLD and I am in NSW. Can I go to small claims court? what can I do? I cannot afford to right off $1200? any help or advise would be appreciated
"Any thoughts, and do you have any precedents relevant for your post regarding jurisdiction."
You could look on Austlii.edu.au for the case of Law V MCI which discusses the issue of jurisdiction. The tribunal in this case refers to a earlier decision from NSW also about the same subject.
The case is Law v MCI Technologies Pty Ltd  VCAT 415 (22 March 2006).
The other case being Oubani v Mci Technologies P/L and Anor  NSWSC 733 (17 August 2004)
It would appear that jurisdiction comes under the state law and courts in which the purchaser was supplied.
imatt.au 2009-11-19 14:59:05