Netregistry Pty Ltd v Shabandeh [2018] NSWCATAP 5

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Netregistry Pty Ltd v Shabandeh [2018] NSWCATAP 5 Hearing dates: 05 December 2017 Date of orders: 04 January 2018 Decision date: 04 January 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President R Hamilton SC, Senior Member Decision: (1) The appeal is dismissed. Catchwords: Procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 Cases Cited: Cao v Lui [2014] NSWCATAP 100 Collins v Urban [2014] NSWCATAP 17 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Netregistry Pty Ltd (Appellant) Leah Shabandeh (Respondent) Representation: A Russell, Member Customers Advocacy (Appellant) Self-represented (Respondent) File Number(s): AP 17/41790 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 12 September 2017 Before: D Charles, Senior Member File Number(s): GEN 17/24591

reasons for decision

Introduction 1. This is an appeal from a decision (the Decision) made in the Consumer and Commercial Division of the Tribunal published on 12 September 2017. The Tribunal made an order requiring the appellant (Netregistry) to pay the respondent (Ms L Shabandeh) the sum of $9,791.00 being the refund of money paid by the respondent to the appellant for a website purchased by the respondent but destroyed by the appellant. 2. Unfortunately these proceedings have a lengthy history which it is necessary to briefly describe as follows: 1. A year ago (on 1 December 2016) the Tribunal published a decision dismissing the application of the respondent to this appeal who sought an order that the appellant (which was then the respondent) pay to her the sum of $9,791.00; 2. The respondent to this appeal appealed that decision and the appeal was upheld. The Appeal Panel published its decision on 1 May 2017. The Appeal Panel's decision was that the appellant had destroyed the website which was the property of the respondent and that the respondent was entitled to one of the remedies which the Tribunal is able to make under s 79N of the Fair Trading Act 1987 (FT Act). One such possibility was that the appellant should return the money it had received from the respondent. Another possibility was that the appellant should pay compensation to the respondent and a further possibility was that the destroyed website might be reinstated. The Appeal Panel was unable to determine the appropriate order and made an order remitting the application to the Consumer and Commercial Division of the Tribunal "for the purposes only of determining the appropriate order or orders under s 79N of the Fair Trading Act that should be made in the light of the reasons provided in this decision"; 3. Following that remittal, the respondent's application was heard and determined on 12 September 2017. The appellant filed a Notice of Appeal in respect of that decision on 27 September 2017; and 4. The transaction which has given rise to this litigation involved an oral agreement entered into between the parties to the effect that the appellant would design a website for the respondent and would provide software called "the Traffic Accelerator Pro" and in return, the respondent would pay to the appellant $9,791.00. In addition, the respondent acquired from the appellant a hosting service by which the appellant would host the website and in return the respondent would pay a subscription. The agreement between the parties was entered into in early 2011 and the website went "live" in early 2012. In mid-2015 the respondent no longer paid for the hosting service and in November 2015 the appellant cancelled the hosting service. At a later time, the appellant deleted the website from its server, the effect of which was that the website became unavailable and unable to be retrieved or reinstated.