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.