1. On 2 December 2015, Mr Venkata Cherukuri made an application to the Tribunal. The applicant claimed payment of the sum of $61,179 calculated as due as at 13 November 2015. In the section of the application form which asks for details of the claim, Mr Cherukuri said in part:

Mr Ravi Danthuluri borrowed a sum of $20,000 in May of 2012. This amount was deposited into his bank account. At the time of borrowing he promised to pay 5% interest per month, and promised to pay in full within 3 weeks from the borrowing date. The amount including interest has risen to [$61,179] to date. Ravi has made a total payment of $23,000 to date in 3 different instalments. During the past 3.5 years, he has made a number of false promises to pay the amount, but never kept his promises.

1. On 26 April 2016, Mr Cherukuri filed points of claim. Mr Danthuluri filed points of defence on 22 July 2016 and a response to that document was filed by Mr Cherukuri on 3 August 2016.
2. Mr Danthuluri did not deny that there was an oral agreement that Mr Cherukuri would lend him $20,000 and that he would repay that sum within a month. Mr Danthuluri agreed that he was required to pay interest at the rate of 5% for the first month after the loan funds were advanced.[1] A number of matters were in dispute including whether the funds were advanced and if so, what interest was to be applied beyond the first month. Mr Danthuluri asserted in the alternative that any debt he owed to Mr Cherukuri was settled in full after he had paid the sum of $23,000 and when Mr Danthuluri paid to Mr Cherukuri further funds he received from Mr Cherukuri's brother in respect of a loan Mr Danthuluri had advanced to the brother. Mr Danthuluri asserted that Mr Cherukuri had been his brother's guarantor.
3. The proceeding was listed for a two day hearing commencing on 22 August 2016. At the commencement of the hearing, Mr Danthuluri's counsel, Mr Kappadath, made an application for summary dismissal under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). The application was made on the basis that Mr Danthuluri considered the Tribunal had no jurisdiction to hear the claim.
4. I decided to refuse to summarily dismiss the claim. After the matter had been stood down, Mr Kappadath stated that his client would seek to appeal my decision and he sought a stay of the dismissal order under section 149 of the VCAT Act. Ultimately the parties agreed to an order listing the matter for an administrative mention to allow time for me to provide written reasons and for Mr Danthuluri to consider his position.

1. Section 75 of the VCAT Act provides that, at any time, the Tribunal may dismiss or strike out a proceeding whether or not all the evidence has been heard. It can do so if, in its opinion, all or part of the proceeding is frivolous, vexatious, misconceived or lacking in substance (section 75(1)(a)), or is otherwise an abuse of process (section 75(1)(b)).
2. The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where the Tribunal has no jurisdiction over the subject matter of the proceeding.

1. Mr Kappadath contended that, while aware that the Tribunal is not a court of pleadings, the application had fatally failed to identify the enabling enactment under which the proceeding was brought. He noted neither the application nor the points of claim referred to any legislative basis for the Tribunal's jurisdiction. He correctly pointed out that, as a creature of statute, the Tribunal only has the jurisdiction granted by Parliament and so, if the Tribunal had no jurisdiction to hear and determine a proceeding, it must be dismissed.[2]
2. Assuming that the claim might have been brought under the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA), Mr Kappadath submitted that the application and points of claim did not show that the parties fell within the ACLFTA definition of 'consumer and trader' and so the dispute did not fall within that Act. He contended that the claim was a common law claim for repayment of a loan which ought to be brought in the Magistrates' Court of Victoria.
3. It was further contended that it was necessary for Mr Cherukuri to demonstrate that services were provided which fell within the ACLFTA and that the loan in issue had to have been provided in trade or commerce. The parties agreed the relevant and applicable part of the definition of services in the ACLFTA was as follows:

(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(vi) any contract for or in relation to the lending of money (my emphasis).[3]

1. Mr Kappadath contended that the reference to services being 'provided granted or conferred in trade or commerce' in paragraph (a) of the definition applied to all services, including those referred to in paragraph (b). As I understood it, the contention was that, taking into account the word 'and' at the end of paragraph (a) and the words 'without limiting paragraph (a)' in paragraph (b), while paragraph (b) gives examples of specific rights, benefits, privileges or facilities which fall within the definition, it is still necessary for those services to be provided in trade or commerce.

1. Counsel for Mr Cherukuri, Mr Rizzi handed up written submissions which addressed the jurisdictional issue. In summary, he contended that:
   • By virtue of section 184(1) of the ACLFTA, the Tribunal has the power to hear and determine a consumer and trader dispute as defined in section 182 of that Act;
   • The proceeding falls within the definition as it is a dispute or claim between a purchaser (Mr Danthuluri) and a supplier of services (Mr Cherukuri);
   • Relying on Sherman v Watson,[4] (a decision made under the Fair Trading Act 1999 (Vic), the predecessor to the ACLFTA), a broad approach should be taken to interpreting definitions including that which applied to fair trading disputes and words such as 'in relation to';
   • Relying on Fisk v Joyner Trading as Magnormos,[5] the ACLFTA permits recovery of a loan whether or not the loan was made in trade or commerce; and
   • Accordingly, the Tribunal has jurisdiction to hear this proceeding as it is a consumer and trader dispute arising between a purchaser and supplier in relation to the supply of services under the ACLFTA.
2. Mr Rizzi also noted that Mr Danthuluri had previously commenced a proceeding in the Tribunal in respect of a loan he had given to Mr Cherukuri's brother and obtained an order in his favour.[6] Mr Rizzi queried how, having taken that action, Mr Danthuluri could now claim the Tribunal had no jurisdiction to hear the present claim. Mr Kappadath contended that Mr Danthuluri (who was self-represented in the earlier proceeding) brought it mistakenly and that the Tribunal had no power to decide that matter either.

1. I ruled that the Tribunal had power to hear and determine the claim under the ACLFTA having regard to the following matters:

• It was correct to say that neither the application made to the Tribunal's civil claims list in December 2015 nor the points of claim filed in April 2016 made express reference to the ACLFTA. However, the application form contained sufficient information to show that the claim concerned an agreement for a loan, the alleged terms on which the loan had been given, the payments which had been made, the balance outstanding and how that balance had been calculated. Similarly, the points of claim made plain the nature of the agreement and the roles of the parties as on the one hand a purchaser and on the other a supplier of services;
  • As the Tribunal is not a court of pleadings, it was not necessary for the enabling enactment to be identified where it was plain that the subject matter of the claim concerned services and that is a claim able to be heard and determined under the Tribunal's ACLFTA jurisdiction; and

1. The part of the definition of 'services' contained in paragraph (b) above does not require proof that the contract for the loan was provided in the context of trade or commerce. Paragraph (b) is to be read independently of (a) and sets out specific examples of services. It would not be correct to read it as confining which 'rights, benefits, privileges or facilities' are within paragraph (a). The words 'without limiting paragraph (a)' make it plain that the broad words in (a) may still be relied on for services which do not fall within or are like those described in (b). If those words are set aside, it is apparent that any contract for or in relation to the lending of money is within the definition of services. That approach is consistent with the Tribunal's decision in Fisk.[7]
2. Accordingly, I found that the claim made falls within the ACLFTA and so within the Tribunal's jurisdiction.
3. For completeness I refer to section 2(1) of the Australian Consumer Law (Victoria) which provides that the phrase 'trade or commerce' includes any business or professional activity, whether or not carried on for profit. I also note Deane J's reasons in Re Ku-ring-gai Co-Operative Building Society (No 12) Ltd.[8] His Honour said that the terms 'trade' and 'commerce' are not terms of art and are of the widest import.
4. If it should be the case that the service in issue had to be supplied in trade or commerce in order to fall within the ACLFTA, I am satisfied that loaning funds repayable with interest at a rate of 5% per month would be regarded as a business activity.

1. I record that, with the parties agreement, the remaining hearing time was used to conduct a compulsory conference. The matter was not resolved. Given I conducted the compulsory conference, if the matter returns for further hearing at the Tribunal it would not appropriate for me to be listed to do so.

[1] Points of claim, paragraphs 1 and 2 and points of defence paragraphs 1 and 2.

[3] Section 3(2) of the ACLFTA says that unless the contrary intention appears the words and expressions used in that Act have the same meanings as they have in the Australian Consumer Law (Victoria). Accordingly, this definition contained in the latter Act applies to the ACLFTA.

[4] [2003] VCAT 2002.

[5] [2015] VCAT 1187 at paragraph 8.

[6] Proceeding C780/2014, order made on 10 June 2016 for payment of $53,000 to Mr Danthuluri by instalments. I was informed by Mr Kappadath that the order for instalments was made by consent.

1. [7] After the hearing, a decision of Senior Member Vassie came to my attention, in which he came to the same view about the construction of paragraphs (a) and (b) of the definition albeit in respect of a different part of paragraph (b) - see AHV Pty Ltd v Blairgowrie Yacht Squadron Inc (Civil Claims) [2013] VCAT 1789.

[8] [1978] FCA 50; (1978) 36 FLR 134 at 167.