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[2001] VCAT 49
plaintiff. The Respondent shall pay to the Applicant the sum of $2043.00 forthwith (order made pursuant to s159 after findings of misleading and deceptive conduct and false representations under the Fair...
Evagora bought a computer via eBay in July 2000 after seeing prominent website statements that purchases were insured and safe. The computer never arrived. eBay later pointed to insurance terms limiting payouts to $270 in linked materials and a long User Agreement. The Tribunal found the prominent on-page statements misleading because the limits were not clearly displayed, held that eBay (as host) was a supplier under the Fair Trading Act 1999, and ordered eBay to pay the applicant A$2043 in damages under s159.
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1,588 words · generated 21/08/2026
The applicant, Mr John M Evagora, successfully bid for an IMAC DV SE computer on 29 July 2000 via eBay's online auction service and paid US$1,174 (A$2,043) by wire transfer to the seller [1, 4]. The item was listed as located in Oman and did not arrive. The applicant, who described himself as not computer literate, relied on prominent statements displayed on eBay's homepage and bidding page, notably a graphic stating "Buy with confidence. ebay insured. Automatically insured" and a bold statement on the bidding page "eBay purchases are insured" [2]. He alleged those statements induced him to participate and to send payment.
1 cited instrument linked from this judgment.
After the item failed to arrive, eBay informed him by email (5 September 2000) that he had to satisfy certain conditions to qualify for insurance and that the insurance limit was $270 [5]. The applicant did not pursue the $270 insurance, believing that to accept it would equate to accepting its limits. He sought assistance from eBay and police; eBay's further assistance was limited to banning the seller [6, 7]. The applicant brought a claim before the Victorian Civil and Administrative Tribunal for A$2,043, asserting misleading and deceptive conduct and false representations in contravention of the Fair Trading Act 1999 (the Act) [1, 2, 15].
eBay defended on multiple grounds: that the transaction occurred on the US eBay site governed by eBay Inc's terms (including insurance conditions) [13(a)]; that eBay ANZ merely provided a venue for transactions and so was not a supplier under ss107/108 of the Act [13(b)]; and that release clauses in the User Agreement barred liability [13(c)]. eBay also relied on the fact the User Agreement and linked insurance terms limited liability and set claims procedures [9-11].
The Tribunal (Member Catherine Aird) heard the case on 16 March and 24 May 2001 and delivered reasons on 20 July 2001. It found for the applicant and ordered eBay to pay the full A$2,043 under s159 of the Act [Order; 18].
The Tribunal’s decision turns on three interlocking findings:
The prominent representations on eBay's homepage and bidding page amounted to clear inducements that purchases were insured and that buying via eBay was safe; the applicant was entitled to rely on those representations [2, 15].
The qualifications or limitations on that insurance were not displayed with sufficient prominence. A small "Conditions Apply" under a prominent graphic and insurance details only accessible through links and a lengthy (12-page) User Agreement were not adequate to alert the average or inexperienced user to a meaningful limitation (a $270 cap) which directly contradicted the impression given by the on-page statements [2, 10, 15, 16]. The Tribunal emphasised that where limits apply they must be "clearly spelt out" [16].
eBay ANZ's role as host of online auctions constituted the provision of a service. That meant the dispute was a "fair trading dispute" within s107 of the Act and the Tribunal had jurisdiction to make orders under s159 [14(a), (b), 18]. The Tribunal also rejected the proposition that release clauses in the User Agreement defeated the applicant's statutory claim, finding them insufficient in the circumstances to oust liability under the Act [14(c)].
Put simply, the Tribunal balanced the direct, prominent assurances on the site against the less accessible, qualifying material and found that, as presented, the overall impression created by eBay's on-page statements was misleading and that eBay could not rely on contractual technicalities hidden in linked material to defeat a statutory claim.
Before this decision, the legal landscape on online statements, incorporation of online terms, and the application of consumer protection statutes to internet intermediaries was evolving. The decision addresses three key questions that were nascent in 2001:
Post-decision, Evagora v eBay ANZ provides a clear statement that prominent on-page claims cannot be unpicked by obscure or buried online terms when assessing misleading and deceptive conduct. It reinforces that operators of digital marketplaces may be treated as suppliers of services and subject to statutory obligations. The decision serves as an early authority for the proposition that online presentation and user experience matter for statutory liability: a mere "Conditions Apply" footnote or long-contract hyperlink may not suffice to qualify bold, front-page statements.
This decision is directly engaged where:
In those fact patterns, Evagora suggests a tribunal or court will scrutinise the website's presentation and prominence of qualifications when assessing misleading or deceptive conduct and may treat the platform as a supplier under consumer-protection legislation.
This deep dive is limited to the instant judgment and the text provided. The Evagora judgment itself contains no list of subsequent treatments. Practitioners should consult later authorities and statutory developments (including the Australian Consumer Law) for confirmation of how higher courts or later tribunals have treated the same issues, particularly regarding platform liability and incorporation of online terms.
The Evagora decision answers several important questions, but it leaves open or raises further issues:
Note: The above deep dive is grounded solely in the text of the VCAT decision Evagora v eBay Australia & New Zealand Pty Ltd [2001] VCAT 49 as provided. It does not incorporate subsequent statutory reform (for example, the later introduction of the Australian Consumer Law into schedule 2 of the Competition and Consumer Act 2010) or later case law.
This is general legal information, not legal advice. I can make mistakes. Before you act on this, rely on it, or use any draft or interpretation, get a qualified Australian lawyer to check it.
Medium Neutral Citation [2001] VCAT 49
The Respondent shall pay to the Applicant the sum of $2043.00 forthwith
1. The Applicant, Mr Evagora, is claiming the sum of $2043 being the purchase price plus shipping charges for an IMAC DV SE computer purchased over the internet, through the Respondent's (eBay) auction site. The computer was purchased on 29 July 2000 but was never received by Mr Evagora.
2. Mr Evagora on his own admission is not computer literate. Wishing to buy a computer, he searched the eBay site it having been suggested to him by a friend, and when he found one he was interested in, he registered with eBay with the assistance of a friend on or about 29 July 2000, using a friend's computer and email address. He then bid successfully for a computer that was apparently located in Oman in the Middle East. Mr Evagora said that he felt confident buying online because of the various assurances on the homepage and the "bidding page" that all purchases are insured, and that buying online with eBay is safe. In support of his position, Mr Evagora provided to the Tribunal copies of various pages from the internet including eBay's home page, and the "bidding page". The homepage includes a prominent clickable graphic which states in large letters "Buy with confidence. ebay insured. Automatically insured" In smaller letters appear the words "Conditions Apply". There is also a smaller clickable graphic in the centre of the page which includes "why eBay is safe". The "bidding page" includes the following statement in bold type "eBay purchases are insured". He noted there are no warnings that buyers buy online at their own risk.
3. Mr Evagora conceded that he did not read the User Agreement which is some 12 pages long before clicking on the "I accept" button. However, he submitted that in any event it seems to contradict the representations made on the homepage that buyers can buy safely and with confidence, as in his view the terms and conditions as set out in the User Agreement have the effect of shifting the risk to the buyer.
4. Mr Evagora received a confirmatory email from the seller of the computer on 29 July 2000 confirming the computer would be shipped as soon as payment in full was received. He also received an email from eBay the same day confirming that he was the successful bidder and advising "If you're a winning bidder, send your payment to the seller". The seller, by email dated 30 July 2000, confirmed account and bank details for payment of the sum of $1174 USD (A$2043) following which he said the computer would be shipped to Mr Evagora. Mr Evagora sent the money on 31 July 2000 by wire transfer to the account details provided.
5. After a couple of weeks, when the computer had not been received, Mr Evagora telephoned eBay's Sydney office who suggested he wait a little longer as the computer was coming from Oman. He contacted them by eamil on 1 September 2000 confirming that he had not received the computer and received a response by email on 5 September in which he said he was made aware for the first time of the conditions he would need to satisfy to qualify for insurance and that the limit of any insurance payout would be $270. A link to information about the Insurance Program was also provided. Until this email from eBay, Mr Evagora always believed that his purchase was fully insured.
6. He then telephoned Ray D (Trust and Safety department) who told him to contact the police. Carlton Police advised they were unable to assist as the seller was outside their jurisdiction, and suggested he ask eBay to contact the police in Oman. Apparently, eBay refused to provide any further assistance, and Mr Evagora said he found them to be very unhelpful. He emailed them again and received a response on 14 September 2000 denying liability.
7. Later in September Mr Evagora received a telephone call from Kaye Dewar who he thought was the head of eBay but who Mr McSweeney (who appeared on behalf of eBay at the hearing) indicated was the Customer Support Manager, apologising, but saying there was nothing more eBay could do other than banning the seller from their site.
8. Mr Evagora did not make a claim on the insurance because he thought that in doing so he would be deemed to have accepted the limit and conditions.
9. eBay have denied liability for the full amount of the claim asserting that their liability under the insurance provision is limited to $270. eBay relies on the notation on the homepage prominent graphic referred to above - "Conditions Apply" - and on the conditions set out in the User Agreement and submits that this was sufficient notice. Mr McSweeney from eBay also submitted that in accepting the terms and conditions as set out in the User Agreement when he registered with eBay that Mr Evagora was deemed to have accepted this limitation. However, he conceded that there is no direct reference to the limit of $270 anywhere on the homepage, or to any limits applying to insurance claims in the User Agreement - all information in this regard is only available through clickable links.
10. Mr McSweeney provided copies of the current registration forms and User Agreement. The User Agreement is 12 pages long and has numerous clickable links throughout. In particular he referred me to section 6 - Trading safety and precautions which contains various warnings and suggestions about trading safely. In particular, Section 6.2 suggests that where a buyer is concerned about a trading partner they "consider the use of a third party escrow service or services that provide additional user verification....". Section 6.3 contains a release in favour of eBay in relation to any disputes which arise between trading partners. Section 13 contains more extensive releases. There is no mention of insurance in the User Agreement provided to me, nor is the information readily available through a direct clickable link.
11. The Respondent suggested that as this was a free programme users should expect that there would be some conditions and restrictions
12. The Respondent has also suggested that the insurance conditions applicable to the US site should apply in this instance, as it was clear that the bidding for this item was being carried out on the US site, notwithstanding the address is cgi.ebay.com.au/aw-cgi/ (this is not the full address but is the beginning of the address that appears on the bottom of the description page) and there is a header at the top of the page "eBay Australia item....". Mr McSweeney submitted that as all bids were to be in $US and the time in this page is in US time it was self evident that Mr Evagora had in fact logged on to the US site.
13. Although not vigorously pursued at the hearing, the Respondent had forwarded a letter to the Tribunal dated 1 March 2001 in which it made application for summary dismissal of the application on the following grounds:
(a) that the transaction was carried out on the US site and is covered by the terms and conditions of the eBay Inc site including eBay Inc's conditions for insurance cover including that claims should be made within 60 days of the auction's close.
(b) that a fair trading dispute does not exist within the terms of ss107 and 108 of the Fair Trading Act 1999 as in "hosting online auctions, eBay ANZ and eBay Inc are merely providing a venue for the auction and are not a party to the transactions taking place on the site. eBay ANZ and eBay Inc are in no way a supplier (or possible supplier) of items sold on the site, and therefore the complaint against eBay ANZ is not a "fair trading dispute" for the purposes of the Act.
(c) the release in clauses 2.3 and 6.3 of the User Agreement protect eBay from any such claims.
14. In relation to the matters raised in the Respondent's letter of 1 March 2001 referred to in paragraph 13 hereof I find:
(a) Although it is submitted by the Respondent that this transaction was carried out on the US site operated by eBay Inc there is no evidence before me that this was apparent or should have been apparent to Mr Evagora. All material submitted to me by Mr McSweeney on behalf of the Respondent contains no information whatsoever to suggest that this item was listed for sale on the US site and that the terms and conditions of the eBay Inc User Agreement would apply to any transaction. The description and "bidding" sheets are all headed "eBay Australia item and contain an Australian address at the foot of each page. Although US time is referred to, and the bidding is to be in $US this of itself is not sufficient to indicate that a buyer has been transferred to the US site. It would not be unreasonable for a prospective purchaser to assume that all transactions involving an overseas seller would be in $US being the commonly accepted international currency. I therefore find the transaction took place on the Australian site.
(b) s107 of the Fair Trading Act 1999 defines a "fair trading dispute" as a "dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services". "purchaser" is defined in s3 of the Act as "the person to whom the goods or services have been or are to be supplied".. It is not necessary for there to be any financial consideration. It is clear that the Respondent in hosting online auctions is providing a service - the provision of a venue for the auction - to both sellers and buyers. I am therefore satisfied that there is a fair trading dispute between the parties which falls within the provisions of s107 of the Act..
(c) I am not satisfied that the releases set out in the User Agreement defeat any claim the Applicant has under the Fair Trading Act 1999.
15. I am satisfied on the evidence before me, that Mr Evagora, was induced to participate in an on-line auction by the clear representations by the Respondent, as contained on its homepage, that it was safe to do so, and that all purchases were automatically insured. Furthermore, I am not satisfied the proviso "Conditions Apply" provides sufficient notice to buyers that the available insurance cover is limited. Even if the Respondent had been able to successful rely on this proviso to absolve itself of any liability, the statement "eBay purchases are insured" on the "bidding page" is of itself a clear representation that I find the Applicant was entitled to rely upon.
16. It would appear the eBay have assumed a level of sophistication of its users that is not reasonable in all the circumstances. It is true that many people have a good knowledge and understanding of the internet but increasingly, those with limited experience are beginning to use it. These people are often attracted to sites such as that operated by the Respondent as an alternative means of purchasing goods. The Respondent has an obligation to its consumers to ensure that any limitations associated with the use of its online auction facility are clearly notified to prospective users. It is not sufficient to have a 12 page User Agreement with numerous clickable links that in many respects contradicts the clear representations contained on the homepage and the "bidding" page. Where limits apply they must be clearly spelt out. In this instance, I do not accept Mr McSweeney's submission that it would not have been possible to include a notation "limit of $270 applies" under the prominent insurance graphic on the homepage, or under the notation on the bidding page.
17. In relation to the suggestion that Mr Evagora should have availed himself of the escrow provisions, I find it was reasonable for Mr Evagora to rely on the advice contained in the email from eBay of 28 July 2000 requiring "If you're a winning bidder, send your payment to the seller". Again, where there were limits or conditions the user should be provided with proper and adequate notice.
18. I therefore find that Mr Evagora was induced to use the service provided by the Respondent by its misleading and deceptive conduct within the provisions of ss9 and 11 of the Fair Trading Act 1999 and by its false representations under s12(e) (k) and (n) of the Act. Pursuant to the provisions of s159 of the Act I order the Respondent to pay to the Applicant by way of damages the sum claimed of $2043.
Evagora
eBay Australia & New Zealand Pty Ltd [2001] VCAT 49
The Respondent shall pay to the Applicant the sum of $2043.00 forthwith (order made pursuant to s159 after findings of misleading and deceptive conduct and false representations under the Fair Trading Act 1999).