Lui v I Do International Pty Ltd [2025] NSWCATCD 160;

(1) the agreement that she entered into with IDI was an unsolicited consumer agreement within the meaning of s69(1) of the ACL, and that as a consequence it was subject to a cooling off period, which she was not informed of by IDI and which IDI did not honour, and further that IDI should not have requested or accepted payment of the full contract price during the cooling off period;

(2) IDI engaged in deceptive, misleading and unconscionable conduct in breach of the ACL during the negotiation and execution of the agreement with Ms Lui;

(3) IDI engaged in further deceptive, misleading and unconscionable conduct so as to induce Ms Lui to remain in the contract after she sought to terminate it; and

(4) certain terms of the contract with IDI were unfair contract terms, and that IDI also engaged in unfair practices within the meaning of the ACL.

1. Initially Ms Lui's claim, which was filed with the Tribunal on 27 January 2025, included a claim for a full refund of the membership fee paid by her to IDI in the amount of $6,066 CAD, together with costs and disbursements incurred by her in pursuing the claim. Her disbursements (ASIC search, postal fees, photocopying, filing fee, long distance calls to attend the hearings) total $615.96. In addition, Ms Lui estimates spending at least 12 hours, but likely much more, of her own time in preparing the claim. This is in addition to the time she spent seeking a refund shortly after she signed up for the services provided by IDI.
2. However, after the claim was filed, on 15 February 2025 IDI refunded the membership fee in full to Ms Lui. Ms Lui continues to seek to recover her damages and costs.
3. In addition, Ms Lui seeks leave to obtain from the Local Court a declaration that the terms contained in the contract with IDI were unfair (ss71 and 76 of Fair Trading Act 1987 (NSW) (FTA), and s250 of the ACL.)
4. In response IDI submit that Ms Lui's claim has no merit for the reasons that:

(1) IDI has refunded the entire service fee to Ms Lui and as such Ms Lui can no longer claim that he has suffered actual financial loss;

(2) Ms Lui cannot assert unfairness or misunderstanding of a contract she professionally reviewed and accepted on her own initiative;

(3) the agreement with IDI was not an unsolicited consumer agreement under the ACL and as such the provisions regarding unsolicited sales and mandatory cooling-off periods do not apply;

(4) IDI did not engage in misrepresentations; and

(5) the Tribunal does not have power to declare a contract 'unjust'

1. IDI submit that for these reasons Ms Lui's claim should be dismissed.

1. Ms Lui appeared by video link. IDI was represented by Mr Kwan, who appeared in person.
2. The Tribunal received the following materials from Ms Lui, which were marked and admitted into evidence:

(1) a spiral bound bundle of documents totalling 173 pages received by the Tribunal on 10 April 2025; and

(2) a 122 page bundle entitled 'submission record' received by the Tribunal on 14 March 2025.

1. The Tribunal received the following material from IDI, which was marked and admitted into evidence:

(1) a 25 page bundle entitled 'Respondent's formal reply submission' received by the Tribunal on 16 April 2025.

1. The Tribunal heard from the applicant, who took the Tribunal through her submissions and in so doing directed the Tribunal's attention to key pieces of evidence. The Tribunal then heard from Mr Kwan representing the respondent and also Katie, an employee of the respondent. The parties were each given the opportunity to put questions to the other, and after the evidence had been received, each party was given the opportunity to make final submissions.

1. The issue that arises for initial decision by the Tribunal concerns the Tribunal's jurisdiction to grant the relief sought by Ms Lui's application.
2. NCAT has a duty to decide if it has jurisdiction to determine a matter (Australian Postal Corporation v Williams [2024] NSWCATAP 168 at [3]; Eades v Qantas Airways Limited [2024] NSWCATAP 35 at [2] citing Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446; [1924] HCA 36). In deciding whether it has jurisdiction to deal with an application, the Tribunal makes an ancillary decision: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 4(1)(a).

1. The Tribunal derives its jurisdiction to determine ACL consumer claims by virtue of the operation of section 28 and Part 6A Division 2 of the FTA. The effect of s 28 of the FTA is that the provisions of the ACL, which form Schedule 2 to the Competition and Consumer Act 2010 (Cth), are part of the FTA. Part 6A Division 2 of the FTA confers jurisdiction on the Tribunal to deal with consumer claims.

1. Under the definitions set out in the section 79D of the FTA, a 'consumer' includes a natural person to whom a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), and a 'supplier' means a person[End] who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.
2. _'_Services' are defined in section 79F. The definition includes:

(a) the performance of work (including work of a professional nature), whether with or without the supply of goods... and (i) any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce.

1. 'Supply' is defined in section 79G. Under section 79G 'supply of services' includes:

(a) providing, granting or rendering services for valuable consideration, (b) agreeing to supply services, ...

1. Under section 79K there must also be a sufficient link to New South Wales. This includes:

where the 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) (section 79K(1)(c)).

1. While Ms Lui lives in Canada, IDI is incorporated in New South Wales. The agreement between Ms Lui and IDI was prepared by IDI and accepted by Ms Lui by way of DocuSign, and was expressed to be subject to the laws of Australia.
2. In NSW, the general rule is that a contract is formed at the place where the acceptance is communicated to the offeror. If the acceptance is communicated via email, the contract is formed where the email is received. If by post, where the letter is posted. For instantaneous methods, the contract is formed where the offeror receives the acceptance.
3. In this case, the offeror IDI being a NSW registered corporation, received the acceptance in NSW, which provides the link to NSW that is required by s79K of the FTA.
4. The Tribunal is satisfied that the case concerns the supply or proposed supply of 'services' being matchmaking services by a 'supplier' namely IDI, a corporation registered in New South Wales, in trade or commerce to a 'consumer' Ms Lui, a natural person pursuant to a contract made in New South Wales. As such, the ACL applies to the provision of services and the agreement between Ms Lui and IDI.
5. However, that is not the end of the matter. The Tribunal does not have jurisdiction to deal with all claims brought under the ACL. As noted above, the Tribunal derives its jurisdiction in respect of ACL matters by virtue of the operation of s28 and Part 6A Division 2 of the FTA.
6. Section79J of the FTA provides that the Tribunal may to hear and determine a consumer claim the subject of an application under Part 6A Division 2. Section 79N sets out the orders that the Tribunal may make in favour of a claimant. Section79O sets out the orders which may be made in favour of a respondent.
7. Section 79E of the FTA defines 'consumer claim'. Relevantly to the present case, s79E(1) provides that:

"For the purposes of this part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) ... (a) the payment of a specified sum of money ...".

1. Section79I of the FTA provides that any consumer may apply to the Tribunal for determination of a consumer claim.
2. When Ms Lui's claim was filed a refund had not been paid. Ms Lui sought payment in the form of a full refund. The claim for a refund is a claim for payment of a specified sum and as such falls within s79E(1)(a). Ms Lui was entitled under s79I to apply to the Tribunal for determination of her claim.
3. However, by the time of the hearing a refund had been paid. As such, by the time of the hearing Ms Lui's loss had been made good, and for that reason her claim for a remedy in the form of payment of a specified sum of money no longer required determination.
4. Ms Lui also seeks her reasonable costs and disbursements of the application, and reimbursement for damages and consequential loss resulting from the institution and management of the present application overseas. In effect Ms Lui seeks her costs of the proceeding before the Tribunal. She has not identified other damages and consequential loss that would result in a monetary award within the meaning of s79E(1)(a).
5. Section 60 of the NCAT Act provides that each party is to pay their own costs, save where the Tribunal is satisfied that there are special circumstances warranting an award of costs. Even if the Tribunal was satisfied that there were special circumstances, an award of costs is not the 'payment of a specified sum of money' as contemplated by s79E(1)(a).
6. In the circumstances, where Ms Lui has received payment of a full refund, Ms Lui can no longer claim to have suffered loss, and none of the orders which the Tribunal may make under s79N are available.
7. For these reasons this part of Ms Lui's claim is dismissed.
8. In dismissing Ms Lui's claim for payment, the Tribunal is not required to consider, and has not considered and determined, whether the agreement with IDI was an unsolicited consumer agreement, or whether IDI engaged in misleading conduct.

DOES THE TRIBUNAL HAVE JURISDICTION TO DECLARE TERMS CONTAINED IN THE CONTRACT WITH IDI UNFAIR WITHIN THE MEANING OF THE ACL, OR TO GIVE MS LUI LEAVE TO SEEK SUCH DECLARATIONS FROM THE LOCAL COURT?

The Court may declare that a term of a consumer contract is an unfair term, on application by: (a) a party to the contract; or (b) the regulator.

1. FTA s71 '71 Declarations by Supreme Court concerning unfair contract terms' subsection (1) provides that:

An application for a declaration under section 250 of the ACL may be made only by the Secretary or, with the leave of the Supreme Court, by a party to a consumer contract that is a standard form contract.

1. The Tribunal is not a court of a State (see, for example, the decision of the Court of Appeal of the NSW Supreme Court in Attorney-General for New South Wales v Gatsby [2018] NSWCA 254). As such, the Tribunal does not have jurisdiction under ACL s250(1) to declare that a term of a contract is unfair, nor under s71(1) to give leave to a party to apply to the Supreme Court for such a declaration.
2. For these reasons the balance of Ms Lui's claim is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.