Ghosh v Miller

District Court of NSW|2014-07-29|Before: Ms J

The plaintiff's summons 1The plaintiff, by further amended summons filed on 13 June 2014, appeals from Reasons for Decision of the Consumer Trader and Tenancy Tribunal ("CTTT") dated 3 September 2013 on the sole ground that the Tribunal erred in holding it had jurisdiction because the house at which the services were provided was in Surfers Paradise, Queensland "and the contract for hire was entered into by the acceptance, in Queensland, of the emailed offer to rent from the respondent".

The proceedings before the CTTT 2Mr Miller ("the defendant") brought proceedings under the Consumer Claims Act 1998 (NSW) seeking $5,000 damages for misleading and deceptive conduct from the defendant for the contents of an advertisement she placed on a holiday vacation letting website. He alleged he was induced to rent the premises by reason of the glowing description of the house, but that when he and his family arrived for their Christmas Gold Coast holiday they found the house filthy, inadequately furnished, run down and without air conditioning. He and his family bought cleaning equipment and cleaned the premises. They also purchased a couple of pedestal fans to deal with the heat. 3The plaintiff gave no evidence in the Tribunal hearing, apart from the material she provided for an interim ruling she sought on jurisdiction. As is set out in the Tribunal Member's findings, the plaintiff initially responded to the Notice from the CTTT dated 7 June 2013, stating: "As the matter occurred in Queensland, I believe it is not within the Newcastle jurisdiction to prosecute, and also is out of reasonable time limits to make a complaint for a stay in December 2011." (Exhibit X) 4Dr Ghosh followed this up on 25 June 2013, by an email stating: "The house is in Surfers Paradise, Queensland, and as such the CTTT of Port Macquarie, New South Wales has no jurisdiction." 5She sent a further email dated 9 July 2013, stating: "Dear Natalie, The hearing is tomorrow and I haven't received a reply yet. How can a Port Macquarie CTTT make a determination on a Surfers Paradise Queensland house?" 6It is clear, from the correspondence on the file, that the basis upon which the plaintiff challenged the jurisdiction of the CTTT was that the house the subject of the letting agreement was in Queensland, and not in New South Wales.

The CTTT interim ruling on jurisdiction 7Section 7, Consumer Claims Act 1998 (NSW) provides: "7 Jurisdiction in respect of consumer claims (1) General. The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section. (2) Supply or agreement made, or supply intended to be made, in New South Wales. The Tribunal has jurisdiction to hear and determine a consumer claim only if: (a) the goods or services to which the claim relates were supplied in New South Wales, or (b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). (3) The Tribunal has such jurisdiction whether or not: (a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or tribunal (whether in New South Wales or elsewhere), or (b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim. (4) Limitation periods. The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. (4A) Nothing in this section affects any period of limitation under the Limitation Act 1969. (5) Claim relating to solicitor's or barrister's costs. A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under Part 3.2 of the Legal Profession Act 2004." 8The fact that the premises the subject of the letting agreement were in Queensland was an insufficient basis for complaint if the contract in question was made in New South Wales. 9The Tribunal took into account the provisions of s 7(2)(c) and made a ruling on 9 July 2013: "The Tribunal rules that it does have jurisdiction to hear and determine the application, as the contract to which the claim relates was made in New South Wales (Consumer Claims Act 1998, s.7(2)(c))". (Exhibit X). 10Having made this interim ruling, the Tribunal then proceeded to the hearing of these proceedings. A hearing date was arranged and on Friday August 2, 2013 the plaintiff sent an email to the Tribunal: "I wish to strike out a claim by Mr Rodney Miller in the Port Macquarie CTTT, for a holiday rental stay in my Surfers Paradise Qld House in December 2011 for the following reasons: (1)The house is in Surfers Paradise, Queensland, and as such the CTTT of Port Macquarie NSW has no jurisdiction (2)No legal or other contract was ever signed or exchanged in NSW, as the Port Macquarie NSW CTTT alleges for it reasons for having jurisdiction, but to date has failed to provide a copy of any such contract (3)The house is owned privately by me as an individual, and not as a trader or business, and therefore Fair Trading has no power to investigate (4)I request again that Rod Miller's dishonest complaint two years later, and attempt to get a full refund of all money paid for a stay of a very large group of people (much larger than he booked and paid for) in December 2011 to be struck out as vexatious." (CTTT file) 11The second of these submissions has a highlighted note beside it, as do the subsequent entries on the CTTT file in correspondence from the CTTT informing the plaintiff that the Tribunal Member would telephone her, at the number she had given, at 2.45 p.m. on 3 September 2013. This highlighted entry appears to be one of the bases upon which the Tribunal Member made his findings at paragraph 16 when he considered afresh the issue of jurisdiction. 12 The plaintiff repeated this submission in a subsequent email dated 2 September 2013 where, having provided the telephone number at which she could be called the following day, she stated: "Please note the points I have raised in my email below [i.e. the 2 August 2013 email], as this is a Queensland matter, and no contract was exchanged in NSW" (CTTT file). The basis upon which she asserted that no contract was exchanged in New South Wales was, therefore, the basis upon which she had set out the relevant material in her 2 August 2013 email.

The evidence at the hearing 13At the hearing on 3 September 2013, the plaintiff appeared by telephone link. She told the Tribunal Member that she had not received the 9 July 2013 procedural directions; this was, I infer, her explanation for not complying with the timetable. As is set out at [16] and [17] of the decision appealed from, the Tribunal Member did not accept this submission, as the 9 July 2013 procedural directions included the ruling as to jurisdiction, "and the respondent had referred to this ruling in her emails to the Tribunal, before the hearing of 3 September 2013" (at [16] of the Tribunal Member's reasons for decision). 14The Tribunal Member states (at [17]) that the plaintiff "withdrew from the hearing on 3 September 2013 by terminating the telephone connection", and did not provide any sworn evidence to the Tribunal. 15Mr Dibb, on behalf of the plaintiff, submitted that it was not clear what evidence from the defendant was before the Tribunal, that it was uncertain that any ruling had been given on 9 July, that the plaintiff may have told the Tribunal, before hanging up, that she was in Queensland at the time that the contract was entered into, and that she certainly did so in her email of 2 September 2013, when she stated that "no contract was made in New South Wales". Mr Dibb submitted that the only way to understand that "no contract" statement was to infer that the plaintiff was not in New South Wales at the time of acceptance of the contract. 16The plaintiff's email of 2 September 2013 needs to be read in context, particularly since it refers to the 2 August 2013 email as containing the gravamen of her complaints. The basis for the plaintiff's claim of lack of jurisdiction was stated to be that the letting property was in Queensland. She raised other issues, such as the absence of a signed contract, the claim that she was letting the home as a private individual, and that the claim was out of time and vexatious. However, these are not the grounds upon which she asserted the claim should be brought in Queensland rather than New South Wales, but other bases upon which she submitted the proceedings should be dismissed without the merits of the case being considered. 17I am satisfied, having perused the CTTT files, and having given the parties time to peruse them in order to tender additional documents, that the CTTT did make a ruling on jurisdiction on 9 July 2013, based upon the email submissions of the plaintiff, and that her email submissions relevantly referred only to the house being in Queensland. I note that the CTTT file has been with the court for some time, and that the Judicial Registrar recorded, on 16 May 2014, that the plaintiff's legal representative was given access to it on that day (order 4). I am satisfied that the plaintiff did not refer at any time to being in Queensland at the time the contract was entered into, or in fact refer to having been in Queensland at all. 18The issue of jurisdiction was carefully reviewed by the Tribunal Member, who noted, at paragraphs [4]-[13] of his judgment: "JURISDICTION 4. On 18 October 2011 the applicant enquired by email about holiday accommodation at a property listed on Home Away", and referred to as "Surfers Paradise Waterfront". The enquiry was for accommodation for the period of 22 December 2011 to 27 December 2011, being five nights. The respondent on the same date quoted by email a price of $5,000 which was accepted by the applicant. A deposit of $2,500.00 was paid to the respondent on 20 October 2011. The balance of $2,500 was paid to the respondent on 31 October 2011 and a security deposit was also paid to the respondent. Clearly, on 20 October 2011, the parties entered into a contract regarding the vacation accommodation. 5. The Consumer Claims Act 1988 (the "CC Act") defines a "consumer claim: as: "A claim by a consume r for payment of a specified sum of money ... that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not". 6. The CC Act relatively defines "services" as "includes any rights ... benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commer4ce and, without limiting the generality of the foregoing includes ... (d) the letting of premises for vacation or recreational purposes". 7. The CC Act also defines "supplier" as "means a person who, in the course of carrying on or purporting to carry on, a business, supplies goods or services". The CC Act further defines "business" to include: "(a) a business not carried on for profit, and (b) a trade or profession". 8. Clearly, the vacation accommodation, which was the subject of the contract entered into by the parties; is caught by the CC Act's definition of "services". 9. The respondent's actions of advertising the accommodation on a property website, and I understand from the evidence that the respondent continues to advertise the accommodation on similar websites, together with the respondent's use of "professional" cleaners and her taking of a security deposit or bond, cause me to find that the CC Act's definition of a "supplier" is met in the circumstances before me. 10. The requirements of the definition of a "consumer claim" have been satisfied. 11. Section 7(2) of the CC Act states in part: ... The Tribunal has jurisdiction to hear and determine a consumer claim only if: ... (c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales). 12. The contract was made in New South Wales, and irrespective of whether the services were supplied in New South Wales or in Queensland, the Tribunal has jurisdiction to hear and determine the application. 13. Schedule 1 of the [Consumer Trader and Tenancy Tribunal Act 2001] establishes that the Tribunal's jurisdiction in respect of consumer claims under the CC Act is to be exercised in the Tribunal's General Division. The present matter proceeded in the Tribunal's General Division." 19Two findings are of importance in relation to the issue of jurisdiction: (a)The Tribunal Member's characterisation of the plaintiff as the offeror and the defendant as having accepted the offer and subsequently forwarding two payments, which the Tribunal Member was satisfied indicated that the parties had entered into a contract regarding the vacation accommodation on 20 October 2011; and (b)The Tribunal Member's acceptance that the contract was made in New South Wales, made in circumstances where the respondent had refused to give evidence, because, by "terminating the telephone connection", no oral evidence could be given (Reasons for Judgment, paragraph 18) I am satisfied that, by reason of her not giving evidence, she did not tell the Tribunal Member that she asserted she was not in New South Wales at the time of entering into the contract. There are no written documents making such an assertion in terms. 20The evidence before the Court that the plaintiff asserts she was somewhere else other than New South Wales is her statement in her affidavit in support filed on 13 June 2014 (Exhibit A), which did not form part of the proceedings before the Tribunal: "At the time of the acceptance I was at 15 Bundoora Road, Surfers Paradise in Queensland." 21The highest that Mr Dibb can put the evidence is to refer to the part of her correspondence stating that "no legal or other contract was ever signed or exchanged in New South Wales". However, this submission goes on to state that the defendant "to date has failed to provide a copy of any such contract" and appears to be based on the belief that, for the letting contract to be valid, it must both be in writing and be produced to the court in the form of a signed contract. 22The CTTT file and the submissions leading to the 9 July 2013 ruling, as well as the subsequent correspondence (the plaintiff having failed to give evidence) do not disclose that the plaintiff ever provided such information. How, in those circumstances, can the Tribunal Member have made an error of law in not holding that the contract was made in Queensland? 23Had the plaintiff informed the CTTT, by evidence or tender of documents (such as a plane ticket) that she was in fact in Queensland at the time, this would have been a disputed issue of fact for determination by the Tribunal Member. 24There would be a number of ways that such a statement of fact could be tested. The defendant refers to some of these in the written submissions, although the principal point the defendant seems to want to make is that the plaintiff is a busy medical practitioner in Newcastle, and unlikely to be in Queensland on a weekday (which is irrelevant to the issues in this summons). As the plaintiff has not been required to attend for cross-examination, I am not prepared to make such a finding, in view of the serious consequences that would flow from what amounts to an allegation of swearing a false affidavit. 25The manner in which the defendant sought to test the plaintiff's presence or absence from New South Wales, namely to tender analysis of the Internet Protocol ("IP") address for the headers in the plaintiff's emails of 19 and 20 October 2011, was also objected to. Mr Dibb submitted that expert evidence would be required, and I indicated that I would provide my ruling on this issue in my reserved judgment. 26It would appear, from the affidavit of the defendant's representative handed up in court on 29 July (MFI 1) setting out his qualifications, that Mr Miller is in fact an expert in this field, but the question of Dr Ghosh's presence in Queensland is not the only issue to which this evidence goes. Had Dr Ghosh raised the question of her presence in Queensland at the time of this transaction, and sought to challenge jurisdiction on that basis, evidence of this kind could have been led at the CTTT hearing (where the rules of evidence would not apply, and Mr Miller would have been able to lead this evidence). 27Mr Miller's evidence of the IP address of the plaintiff as at 19 October being able to establish she was in Sydney is admissible, but only on the limited basis of demonstrating the kind of inquiry that could have been made in the CTTT hearing, had the issue of the plaintiff's whereabouts been raised, and not as to the truth of the contents of this material. 28What should the Tribunal Member have done, in relation to the plaintiff's failure to give evidence, in relation to the issue of jurisdiction? Mr Dibb submitted that it was incumbent upon the Tribunal Member, notwithstanding the ruling of 9 July 2013, to look behind that ruling and to investigate the basis upon which the plaintiff asserted that the CTTT did not have jurisdiction. He submitted that the Tribunal Member had a proactive duty to assist litigants in person, and to ensure that they had addressed all relevant issues of law, such as jurisdiction. 29I am satisfied that the careful analysis of the issue of jurisdiction by the Tribunal Member was in fact the result of his having objectively considered this issue. The difficulty he had was that the plaintiff did not serve any evidence in accordance with the timetable and, after this was pointed out to her, she "hung up" the phone (to use Mr Dibb's expression), terminating the conversation without giving any evidence either on jurisdiction or the merits of the case. 30Having refused to provide any evidentiary material to the Tribunal, and having sought an interim ruling on jurisdiction on a different basis, the plaintiff cannot be heard now to say that she was in Queensland and that at the time of the contract being entered into, and that the Tribunal's finding that the contract was entered into in New South Wales is the subject of error for this reason. 31The plaintiff's appeal is not really an issue of law at all. This was not a case where the Tribunal misapplied the law, but where the plaintiff clearly identified different grounds for the ruling of 9 July 2013, and thereafter failed to tell the Tribunal Member that in the alternative or addition to the grounds previously put forward, she was personally in Queensland at the time of the transaction. 32Mr Dibb's submissions that it was "not clear" what the plaintiff said to the CTTT, or that there was no actual ruling on 9 July 2013, are not conformable with the correspondence in the CTTT file. The plaintiff put her case to the CTTT in writing; a finding of jurisdiction was made on 9 July 2013, and revisited by the Tribunal Member in circumstances where the plaintiff did not give oral evidence. 33Mr Dibb's alternate submission was that I should take into account the fact that the plaintiff was a layperson, who may not have understood what she had to tell the CTTT. This is an unmeritorious submission. The plaintiff is a tertiary-educated medical practitioner who conducted litigation without the benefit of legal representation in the Local, District and Supreme Courts against the defendant and others over this same period. The plaintiff knew enough to contest jurisdiction, and the ruling of 9 July 2013 clearly referred to s 7(2)(c) as the basis for rejection of her claim. The statement that the plaintiff was in Queensland at the time would have been a simple factual statement for her to make, and one which she could have proved by tender of her work diary, or plane tickets, or similar evidence. 34In those circumstances, there has been no error of law in relation to the sole ground of appeal in the summons.

Application to amend the grounds of appeal 35However, that is not the sole ground of appeal. I pointed out to Mr Dibb that the Tribunal Member described the defendant (Mr Miller) as having accepted the offer made by the plaintiff (Dr Ghosh). As the contract was made in the place where the contract was accepted, then the contract was made in the place where the defendant (Mr Miller) was, and it would be irrelevant whether the plaintiff (Dr Ghosh) was in Queensland or not. 36This appears to have been overlooked by the plaintiff and her advisers. No ground of appeal was pleaded from the finding of the Tribunal Member that the plaintiff was the offeror and the defendant accepted the offer has ever been set out in any of the plaintiff's pleadings. It is clearly a legal issue of some substance. Mr Dibb accordingly sought leave to amend to raise this as a fresh ground of appeal. Given the lateness with which such grounds were raised, discretionary factors arise which require me to examine the prior history of the appeal. 37The plaintiff's summons has an unfortunate procedural history. The Judicial Registrar, on 21 February 2014, struck out the original summons (which had 28 grounds of appeal) with costs, and directed that if no amended summons was filed by 21 March 2014, the proceedings would be dismissed. Leave to amend in the form of a draft summons had been refused, but the proposed draft summons was in fact filed, and a second strike out application was brought on 11 April 2014. That amended summons was also struck out with costs, and leave was granted to file the summons "restricted" to the grounds in paragraphs 4 and 5. On 16 May and 5 June 2013, the plaintiff was again ordered to file an amended summons and to pay the defendant's costs. The order of 5 June identified different paragraphs in the previous summons to which the grounds of appeal were restricted; it is unclear how many transmogrifications the summons has undergone. 38As Ms Reid was not ready to meet this application on 24 July, and Mr Dibb needed time to formulate his argument, I stood the proceedings over to Tuesday 29 July 2014 and directed Mr Dibb to provide an outline of submissions. Mr Dibb did so, but due to an oversight did not attend court to argue the issue of leave to amend, or to take me to the correspondence set out above and set out how it was that he argued this correspondence demonstrated that the defendant was the offeror and the plaintiff was the party accepting the offer. 39The circumstances in which the proceedings had to be adjourned simply to enable the bringing of the amendment flouts not only s 56 Civil Procedure Act 2005 (NSW) but also the proportionality issues set in s 60, as the sum in question is $2,000. Additionally, the sole basis of the appeal is jurisdiction; the merits of the defendant's claim (which was supported by what the Tribunal Member at [14] called "considerable written evidence") are not challenged. Accordingly, leave to amend the summons is refused.

The merits of the "offer and acceptance" argument 40In the event that I have erred in refusing leave to amend, I set out brief reasons for rejecting Mr Dibb's submission that the plaintiff accepted the defendant's offer and not vice versa. 41Mr Dibb's submission is that, in terms of offer and acceptance, the circumstances in which the parties contracted for the letting of the plaintiff's premises were that the offer was made by the defendant, in the form of tender of the letting fee, which was then accepted by the plaintiff. The defendant was in the place of a shopper who makes an offer of the price, and the contract was made when the offer was accepted by the shopkeeper: Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401. His submission is that the plaintiff made an offer on 19 October 2011 (Exhibit D of the plaintiff's affidavit) which the defendant accepted by email on 19 October 2011. The defendant was in New South Wales when he sent this email accepting the offer, which would mean that the contract was formed in New South Wales (see Exhibit 2). 42However, this submission overlooks important exchanges of emails of offers and counter-offers between the parties before the contract came into being. The plaintiff's email of 18 October gave a quote of $5,000 and asked the defendant to "please email me your decision early as it is getting booked out". While I accept Mr Dibb's submission that this initial discussion was of an "invitation to treat" nature, the whole tenor of negotiations then changed. The plaintiff's email of 19 October had stated that the plaintiff would "hold the booking for you for 48 hours and confirm once you have made the payment". There followed a counter-offer by the defendant, which was refused, and the defendant then the terms proposed by the plaintiff for payment of a particular sum, and provision of evidence of this by the due date. The defendant then tendered the payment negotiated in accordance with this correspondence, resulting in an executory contract. 43The defendant submits that this is the language of an offer by the plaintiff which would be accepted once payment was tendered by the defendant. The plaintiff had offered to hold the booking on certain conditions and the defendant had accepted those conditions by making the payments and sending the receipt requested by the due date. 44In MacRobertson Miller Airlines v Commissioner of State Taxation (WA) (1975) 133 CLR 125 at 136, Stephen J noted that the doctrine of formation of contracts by offer and acceptance encounters difficulties when sought to be applied, outside the realms of commerce or conveyancing, to the everyday contractual negotiations which are a feature of life in modern urban communities. 45The cases to which Mr Dibb refers are what Stephen J (at 137) calls "ticket cases", and transactions in shops where a person asks to buy an item in a store for a fixed price. Those cases are not applicable here, when the parties' negotiating correspondence is closely examined, and in circumstances where the plaintiff had agreed to hold the property subject to the performance of certain conditions. 46I am satisfied that the plaintiff offered to hold the booking for 48 hours on the basis that if there was payment by the defendant and the relevant documentation by the due date, there would be a contract in existence. This was what in fact occurred. I am satisfied, therefore, that the Tribunal Member's finding that the defendant accepted the plaintiff's offer by email and by the payment of the money was correct. 47However, these findings are in the alternative to my principal finding, namely that the Tribunal Member did not err as a matter of law in finding that the contract was made in New South Wales, because the evidence before him contained no statement by the plaintiff, at any time, that she was not in New South Wales at the time of the making of the contract. 48Applications of this nature, on the day of the hearing of the appeal, put this Court in a very difficult position. No ground of appeal had been brought on the basis that the Tribunal Member erred in law in holding that the defendant, and not the plaintiff, was the party accepting the offer. The plaintiff had simply overlooked the fact that, in the eyes of the CTTT, she made the defendant an offer which he accepted, which meant her presence in Queensland was irrelevant as the place of acceptance was in New South Wales, where the defendant was at the time of entering into the contract. 49The establishment of the Consumer Trader and Tenancy Tribunal (as it then was known), and the management of appeals from that Tribunal, are based upon the requirement for an informally operating Tribunal as an essential part of resolution of small debts. The plaintiff in these proceedings brings her appeal solely on the ground of jurisdiction, in circumstances where it should have been obvious to the plaintiff that, in order to be correct, she would have to establish that she was in fact the party accepting the offer. Neither party was ready to address this issue and the proceedings had to be adjourned. 50I indicated to Mr Dibb that any adjournment of these proceedings for the purpose of further submissions, particularly since this would relate to issues which had not been raised in the summons as a ground of appeal, would have costs consequences. 51The defendant has foreshadowed a lump sum costs application under s 98 Civil Procedure Act 2005 (NSW). I have accordingly reserved the issue of costs with liberty to apply. Given the smallness of the sum involved, I also note the defendant's request to have the judgment emailed to the parties rather than return to court for the handing down of judgment. The orders will accordingly be entered on Justicelink in the absence of the parties.

Orders: (1)Judgment for the defendant. (2)Costs reserved with liberty to apply. (3)Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2014

New South Wales (Consumer Claims Act 1998(NSW)

Consumer Claims Act 1998(NSW)

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