Oubani v MCI Technologies P/L & Anor

Oubani v MCI Technologies P/L & Anor - [2004] NSWSC 733 - NSWSC 2004 case summary — Zoe

[9]

The appeal 3 The plaintiff seeks firstly, an order pursuant to s 67 of the Consumer, Trader and Tenancy Act 2001 (NSW) (the CTTT Act) that the decision and orders of the second defendant, constituted by Tribunal Member M Sainsbury in proceedings 03/38055 dated 19 December 2003 be set aside; and secondly, a declaration that the second defendant has jurisdiction to hear and determine the plaintiff's application under the Consumer Claims Act 1998 (NSW) (the CC Act) (summons filed 19 January 2004). 4 The plaintiff's grounds of appeal are that the CTTT erred: firstly, in finding that it had no jurisdiction to hear and determine the plaintiff's application under the CC Act; secondly, in finding that the supply of goods by the first defendant to the plaintiff on 4 December 2001 was not a supply to which the CC Act applied; thirdly, in failing to hold that in the transactions between the plaintiff and the first defendant the plaintiff was a consumer within the meaning of the CC Act; fourthly, in finding that the contract between the plaintiff and the first defendant was formed in the state of Queensland; fifthly and in the alternative, in holding that, as a consequence of its finding that the contract between the plaintiff and the first respondent was formed in the state of Queensland, the CC Act did not apply to the transaction; sixthly, by failing to have regard to and apply the principle that for the purposes of the CC Act, a party who claims to be a consumer is presumed to be one until the contrary is proved and the onus of proving that a person who claims to be a consumer is not a consumer is on the party who seeks to establish that fact. 5 Section 67 of the CTTT Act allows for an appeal to be made to this court on a question of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the CTTT Act provides that after deciding the question of the subject of an appeal, the court may, unless it affirms the decision of the Tribunal on the question that should have been made by the Tribunal, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.

[10]

The CTTT proceedings 6 The proceedings before the CTTT arise from a dispute related to a contract between Oubani and MCI entered into in December 2001 when Oubani was aged 17. Under the contract MCI supplied Oubani with a stockbroking trading system including computer software called "Blue Chip Trader" at the price of $5,900.00. MCI marketed the "Blue Chip Trader" software as follows: "The program will analyse the entire Stock Market. It will alert you to a list of shares to invest in that have met the computer's criteria. If you own shares, the program can also alert you to exit your shares in order to show a profit, or reduce the risk of any loss." (See AB 25). MCI was based in Queensland. The computer software was supplied to Oubani at his address in the State of New South Wales (J 2, Facts 6 & 7). 7 In February 2003 Oubani made his first application to the CTTT under the CC Act for an order that the purchase price be refunded. The question before the Tribunal was whether it had jurisdiction to hear the substantive application, that is, whether the dispute should be decided within the jurisdiction of New South Wales or Queensland. In April 2003 Oubani withdrew his application after the CTTT indicated it would be inclined to dismiss the application for want of jurisdiction. In September 2003, Oubani made a second application to the CTTT for an order under the CC Act that MCI refund his $5,900.00. 8 The primary ground of the plaintiff's appeal is that the jurisdiction of the CTTT under the CC Act is not affected by where a contract is formed, but turns on whether there is a supply of goods or services to a consumer in New South Wales. 9 The Tribunal Member held that: "…given that a claim for damages/compensation can only arise if liability is found, and given that the substantive claim in this matter is, according to the Application, one relating to issues at least of the nature of contractual obligations, liability can only arise in the NSW jurisdiction if the usual rules in determining the locus of that jurisdiction should find that the contract or arrangement was formed in NSW. In other words I find that any dispute concerning the supply of goods in NSW must in the absence of express intent in the legislation, be considered in the context of the common law, including the rule that, absent express intent of the parties, disputes on contracts should be decided in the jurisdiction in which the contract was formed. …I find it would be entirely unsafe in this inferior jurisdiction for me to find other than that without an express exclusion in the Act of such a fundamental cornerstone in the consideration of contract-type disputes in Australia as the rule that the contract is formed where the acceptance is received, the law as well established must stand. That is, in the absence of express intent in the Act, I find that a consumer claim will only come under NSW jurisdiction where the contract or other arrangement for the supply is entered into in NSW."

[11]

The relevant legislation 10 The relevant legislation is both the CC Act and the CTTT Act. It is necessary to examine the legislation. 11 The CTTT has and may exercise such functions as are conferred or imposed on it by or under the CC Act (s 5(2) CTTT Act). The Tribunal has jurisdiction to hear and determine any consumer claim brought before it except as otherwise provided by this section (s 7 CC Act). For present purposes the exceptions referred to in s 7(2) to (5) do not apply. In addition, s 21 of the CTTT Act provides that the Tribunal has such jurisdiction to decide matters, and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by this or any other Act. 12 The CC Act also contains the presumption that a person who claims to be a consumer is a consumer unless the contrary is proved. The onus of proving that a person is not a consumer within the meaning of the CC Act is on the party who asserts the other party is not a consumer (s 4). 13 Oubani submitted firstly that the relevant contract was formed in the state of New South Wales and thus being a consumer claim, the Tribunal had jurisdiction; and secondly, that whether the contract was formed in New South Wales or in some other jurisdiction, the clear intent of the CC Act is that any consumer claim as defined by the CC Act can and should appropriately be determined within the NSW jurisdiction and thirdly, the Tribunal Member failed to consider or give effect to the presumption as put in s 4. I do not know whether MCI rebutted this presumption but it did make a submission that the contract was formed in Queensland. In relation to the submission that the contract was formed in New South Wales, it was open on the facts for the Tribunal Member to find that the contract was formed in Queensland. 14 More importantly Oubani submitted that a consumer claim depends on the supply of goods or services and that the relevant consideration was whether goods or services were supplied to a consumer in NSW. The respondent agrees that statement is correct and the decision of the Tribunal was wrong.

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Judgment (34 paragraphs)

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Legislation Cited (3)

Cases Cited (2)