Krajsic v eBay Marketplaces GmbH [2019] NSWCATCD 7

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Krajsic v eBay Marketplaces GmbH [2019] NSWCATCD 7 Hearing dates: 26 November 2018 Date of orders: 23 January 2019 Decision date: 23 January 2019 Jurisdiction: Consumer and Commercial Division Before: J Alder, General Member Decision: 1. The application is dismissed. Catchwords: Consumer claim – unconscionable conduct - negligence Legislation Cited: Australian Consumer Law; Fair Trading Act 1987 Cases Cited: Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682 Donoghue v Stevenson [1932] AC 562 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Safi v Heartland Motors Pty Ltd trading as Heartland Crysler [2016] NSWAP 80 Category: Principal judgment Parties: Stefan Krajsic trading as Crystal & More (Applicant) eBay Marketplaces GmbH (Respondent) Representation: Applicant (self-represented) Nikki Pace (Respondent) (authorised representative from its Australian office and legal counsel) File Number(s): GEN 18/33034 Publication restriction: Nil

REASONS FOR DECISION

Summary and orders sought 1. This is an application filed on 24 July 2018 by Stefan Krajsic trading as Crystal & More (applicant) to be paid $40,000.00 for economic loss suffered due to an alleged breach of duty by the respondent, eBay Marketplaces GmbH (ABN 64 652 016 681) (eBay) and eBay's unconscionable and discriminatory conduct. The applicant also seeks various specific performance orders. 2. eBay is a foreign company registered in Australia carrying on business in Australia as an online service provider and is represented locally by its agent, Corrs Chambers Westgarth Sydney. It is thus able to sue and be sued. 3. Pursuant to a User Agreement entered into between the applicant and eBay which commenced in 2015 and was superseded from time to time by various updated user agreements (Agreement), eBay provided an online marketplace or platform via its website, ebay.com.au (Platform) which allowed the applicant to list items for sale for a fee (and to bid on items free of charge). 4. The applicant's complaints are twofold. Firstly, he alleges that when his eBay account was sabotaged by other eBay users, eBay took no action or failed to act promptly against the perpetrators. Secondly, he says that eBay singled him out when it claimed he had breached the Agreement, ignoring other users whom he claims engaged in similar breaches. 5. eBay disputes it owes a duty and further says that any liability is excluded under the Agreement. It also submits that the Tribunal lacks the powers to make many of the orders sought and that the applicant's loss is not quantified, nor has it been caused by any conduct of eBay.