Victorian Civil and Administrative Tribunal|2013-08-27

The Applicant submitted that:
- (a) the terms and conditions displayed on the website do not apply as he made the booking over the phone and no reference was made to such terms and conditions;
- (b) the alleged exclusive jurisdiction clause is poorly drafted and makes no reference to any specific law, court or tribunal, rather it states:

... In the event that there is a dispute... then it is agreed by the guests that the dispute would be wholly under the jurisdiction of the Department of Fair Trading, and that any hearing about any matter would be in the Office of the Department of Fair Trading at Lismore NSW Australia.

Both Respondent's Counsel[4] and the Applicant[5] referred the Tribunal to relevant authorities.

The starting point in applications such as the present one is to consider the nature of the substantive application. Such an analysis will usually identify the more 'natural forum'.[6]
As indicated during the hearing, most of the authorities to which the Tribunal was referred, arise in the context of contractual arrangements between commercial parties. The current case can be distinguished from such commercial cases, at least to the extent that there was no meaningful disclosure or negotiation between the parties of the terms and conditions upon which the Respondent relies.
In this case, the factual circumstances are relatively straightforward. The Applicant alleges, in essence, that the accommodation was substandard in material particulars, which he has itemised; and accordingly, he and his family were deprived of the standard of holiday and expected enjoyment for which they had paid. In addition he claims, in essence, that he was induced to make a booking at the Village by the false and misleading representations as to the standard of accommodation and associated amenities. In his affidavit, filed on the day of the preliminary hearing, the Applicant annexed photographs in support of some of his claims.
In response, the Respondent says, in essence, that the Applicant and his family arrived at the Village about four hours prior to the stated checking in time of 2 pm and demanded entry, before their unit had been properly prepared. In addition, the Respondent claims that when the Applicant complained about four items,[7] shortly after moving into his unit, he demanded a refund notwithstanding that the Respondent offered to address these issues immediately. The Respondent further states that at no time during his stay at the Village did the Applicant complain about alleged misrepresentations on the websites.
Various extraneous allegations are also made by each party against the other. It became apparent during the hearing that the claim has given rise to a factual dispute involving subjective expectations and assessments. An expeditious and cost-effective resolution for both parties would clearly be facilitated by mediation or a compulsory conference.
At the outset, the Tribunal was concerned that the matter bore a tenuous nexus with Victoria, namely the residency of the Applicant and his family. However, on closer analysis, the Tribunal has concluded that another court or tribunal is not more appropriate than this Tribunal to hear and determine the substantive proceeding. In reaching this conclusion, it is acknowledged that this is a borderline case.
The following factors together tip the balance in favour of such a conclusion:
- (a) The fact that the booking was made by telephone in New South Wales with credit card details being given at that time was not an essential nexus with that State. Indeed, this circumstance was purely fortuitous as the booking could just as easily have been made by phone in Melbourne or from any other jurisdiction. The booking did not need to be made by the Applicant while having a physical presence in New South Wales;
- (b) The terms and conditions which the Respondent relied upon as having been implied at the time when the accommodation was booked, raise a number of concerns as to their applicability and/or enforceability:
  - (i) it is difficult to accept how these terms and conditions formed part of the booking offer and acceptance, if they were not presented to the Applicant, at the time when the booking was made, or at least presented to the Applicant at the time when he entered the accommodation, as the basis upon which accommodation was being offered;
  - (ii) the purported exclusive jurisdiction clause, is strangely worded and does not specify either particular law or a particular court or tribunal;
  - (iii) the clause purporting to exclude any refunds clearly cannot operate at large and must at the very least be read down to be consistent with relevant consumer protection legislation; and
  - (iv) other clauses in the terms and conditions also purport to impose onerous constraints upon a customer's right to complain.
- (c) It is noted that Respondent's Counsel submitted that the claim would be more conveniently handled by the Consumer Trader and Tenancy Tribunal of New South Wales at Lismore. However, no submissions were made as to its relevant jurisdiction or procedures or the likely timeframe within which the current claim could be handled or what if any costs would be applicable;
- (d) The nature of the dispute between the parties does not require a view to be conducted of the Village; or for any expert witnesses to examine and report upon the condition of the Village. The Applicant is content to rely upon an assessment of the photographs which he has taken and his own evidence as to the substandard state of the accommodation. A current view of the Village or any particular unit within it, will invariably suffer the limitation that it may not reflect the state of the Village at the time when the Applicant attended;
- (e) This is not a case where there are already related proceedings on foot in a court or tribunal in New South Wales which might otherwise give rise to a risk of inconsistent findings;
- (f) There was no suggestion that a proceeding in the Tribunal would be oppressive to the Respondent or oppressive generally;
- (g) There was no suggestion that the choice of the Tribunal, by the Applicant, afforded to him an inappropriate tactical advantage;
- (h) There is a substantial advantage to both parties, in litigating in a no-cost jurisdiction whose procedures are directed at a timely resolution of disputes. Indeed, as acknowledged by His Honour President Justice Morris, there are obvious advantages in this kind of matter being dealt with in the Tribunal's Small Claims List;

Rights conferred upon Victorian consumers by such legislation would be eroded if consumers were compelled to take any legal action arising from the supply of goods to them in an interstate court or tribunal.

It is important that courts and tribunals interpret legislation so as to further the intent of Parliament...

(j) The Respondent has not proven any inconvenience in conducting the proceeding before the Tribunal over the inconvenience which would be suffered by the Applicant in being required to institute proceedings in New South Wales.

For the reasons given, the Tribunal does not consider that the subject-matter of the proceeding would be more appropriately dealt with by another court or tribunal. Accordingly, the application under sub-s 77(1) of the VCAT Act is dismissed.

[1] Fara Pty Ltd v Perin [2007] VCAT 1404 at [5]; Commonwealth Bank of Australia v Slaveska [2008] VCAT 2072 at [36].

[2] Victorian Managed Insurance Authority v Dura (Australia) Constructions Pty Ltd (Domestic Building) [2009] VCAT 1918 at [81]- [82].

[3] Atlantic Star v Bona Spes [1974] AC 436 at 471 per Lord Simon of Glaisdale.

[4] Global Partners Fund Limited v Babcock & Brown Limited (in liq) & Ors [2010] NSWCA 196 (12 August 2010]; Venter I Ilona MY Ltd; Ilona MY Ltd v MD Engineering Gesellschaft mit bescharankter Haftung [2012] NSWSC 1029 (24 August 2012); Bentley v Cash Resources [2002] VCAT 1399 (20 November 2002); Bloomcorp Pty Ltd v Meninya Investments Pty Ltd (Retail Tenancies) [2013] VCAT 1311 (8 July 2013).

[5] Bloomcorp Pty Ltd v Meninya Investments Pty Ltd (Retail Tenancies) [2013] VCAT 1311 (8 July 2013); Law v MCI Technologies Pty Ltd [2006] VCAT 415 (22 March 2006); Savage v Hawthorn Shower Screens Pty Ltd [2205] VCAT 1630 (4 August 2005); Kiley v MCI Technologies Pty Ltd (Civil Claims) [2006] VCAT 2543 (18 December 2006).

[6] See the observations of Gillard J in Ewen v BHP Billiton Limited [2005] VSC 4.

[7] Missing plug from bathroom sink; microwave not working; knife missing from knife block; and knife with rust and a bit 'wonky'.

[8] Law v MCI Technologies Pty Ltd [2006] VCAT 415 (22 March 2006) at [7].

Civil and Administrative Tribunal Act 1998

Consumer Law and Fair Trading Act 2012

Harrison v Merkat Investments Pty Ltd (Civil Claims) [2013] VCAT 1499 (27 August 2013)

Harrison v Merkat Investments Pty Ltd

At a glance

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Decision date

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Harrison v Merkat Investments Pty Ltd (Civil Claims) [2013] VCAT 1499 (27 August 2013)