Borah Pragyan Pranab ABN: 81 731 157 429 t/as Move On Removals

Pless-Bennett v Borah (Civil Claims) [2019] VCAT 275

1. The proceeding is struck out for want for jurisdiction.

1. Liberty is reserved to the respondent to apply for an order that the applicant pay the respondent's costs.

1. In the course of a bitter family dispute with her father and her brother, the applicant Manuela Pless-Bennett was required to leave premises at 7B Robertson Street Toorak where she had been living. On 10 February 2018 a removalist collected some of her personal effects and delivered them to the removalist's depot in Port Melbourne. They were stored there until 8 March 2018 when the removalist delivered them to and unloaded them at 133 Ashworth Street Middle Park. She alleges that the removalist damaged some of the personal effects and lost others. She has brought this proceeding to claim $50,500.00 in compensation.
2. Ms Pless-Bennett has named a wrong respondent. She has claimed against Borah Pragyan Pranab trading as Move On Removals. It appears that the entity that traded under the name Move On Removals at all material times was a company, Move On Australia Pty Ltd, of which Mr Borah (his surname) was a director. That error could be corrected readily by the substitution of the company as the respondent.
3. There is a more significant difficulty for Ms Pless-Bennett, however. The removalist alleges that the Tribunal has no jurisdiction to hear and determine this proceeding because Ms Pless-Bennett was not the person to whom the removalist supplied its services and was not the person who purchased those services; there was no consumer and trader dispute between her and the removalist.
4. On 12 December 2018 the proceeding came on for hearing before me on the issue of liability only. It became evident that there was an issue of jurisdiction which had to be decided first. I heard evidence from Ms Pless-Bennett, from her brother Peter Pless and from Mr Borah. Mr Lithgow of Counsel for the removalist made a submission that the Tribunal had no jurisdiction to hear and determine Ms Pless-Bennett's claim. I allowed Ms Pless-Bennett until 31 January 2019 to file and serve a written submission in reply. She did, after having obtained legal advice.
5. The evidence that I heard and the documents that I saw during the hearing proved the following facts:
   • (a) On or shortly before 8 February 2018 George Pacini, acting on behalf of Ms Pless-Bennett's father Roland Pless, requested Move On Removals to give a quotation for packing and removal of goods. Mr Borah went to Robertson Street to make an assessment of what was required. Peter Pless was there. They entered the premises and Mr Borah made the assessment.

(b) By an email to George Pacini dated 8 February 2019 Move On Removals confirmed his booking, and specified the hourly rates that would be charged, for packing and wrapping of the goods on 9 February 2019 and for transporting the goods to the Port Melbourne depot on 10 February 2018.

(c) On 9 February 2018 the packing and wrapping occurred. On 10 February 2018 the removal of the goods to the Port Melbourne depot occurred. Ms Pless-Bennett was present outside the premises when the goods were removed, but did not enter the premises. Security guards were there to prevent her from entering.

(d) Move On Removals sent an invoice to "George" for $1,611.00 and another invoice to "George" for $550.00 for storage fees.

(e) On 12 February 2018 Mr Pacini sent by email to Roland Pless a copy of the invoice for $550.00.

(f) On 26 February 2018 Move On Removals notified Peter Pless, by email, that Roland Pless had authorised Ms Pless-Bennett to have access to "her goods".

(g) On 1 March 2018 Move On Removals sent to Ms Pless-Bennett an email which began, "I am contacting you to confirm that we will be moving your items to your new property on Thursday March 8". After stating that the pick-up time would be 7.00am, that the drop-off would be at an address in Middle Park to be advised and that the price would $328.00 per hour (3 hour minimum booking), the email continued: "Your booking has been allocated a time slot based on the details you have provided us". It went on to specify Move On Removal's terms and conditions of carriage.

(h) Contrary to the contents of that email, Ms Pless-Bennett had not made the booking for the carriage on 8 March 2018 of her goods. Either George Pacini or her father Roland Pless had. Mr Borah gave evidence that the email addressed to her in that manner was in standard form directed to the person who was going to be present to receive the goods at the place to which they were to be carried.

(i) On 8 March 2018 the goods were carried from the Port Melbourne depot to Ms Pless-Bennett's home at 133 Ashworth Street Middle Park, where they were unloaded and left.

(j) Roland Pless paid all of Move On Removal's invoices for carriage and storage of the goods.

1. Even though her father paid those invoices, Ms Pless-Bennett asserted that he had paid them by using her money. She produced to me a document that she had received that related to the family dispute. It was headed "Money paid to, for or because of Manuela." It listed 11 items that totalled $45,109.00. Three of them were:

1. Peter Pless gave evidence that he had prepared that document to show the expenses that he and his father had incurred and for which he says she is liable to reimburse them once the family dispute is finalised; no payment had been made out of Ms Pless-Bennett's funds. I accept his evidence.
2. All of the above facts show clearly that each contract for the packing, carriage to depot, storage and carriage to Ms Pless-Bennett's home of her goods has been a contract between Move On Removals and Roland Pless by his agent George Pacini.
3. By virtue of s 184, within Chapter 7 of the Australian Consumer Law and Fair Trading Act 2012, VCAT has jurisdiction to hear and determine a "consumer and trader dispute", a dispute which is defined in s 182 as follows:
   1. What is a consumer and trader dispute?

(1) In this Chapter a consumer and trader dispute is 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.

In determining the dispute, the Tribunal applies all applicable law, including, where relevant, the Australian Consumer Law (Victoria).

1. In the present case, there is a supplier of services - Move On Removals - and the dispute relates to the supply of those services, but the purchaser of those services was not Ms Pless-Bennett; it was her father; although she has a dispute with the supplier of the services the purchaser of those services does not.
2. The word "consumer" is used in s 182(1) and s 184 as part of a name-tag for the dispute defined in s 182(1). It has no other significance for VCAT's jurisdiction. Nor does the word "trader" have any other significance for VCAT's jurisdiction. As has often been remarked, a more appropriate name-tag would have been "purchaser and supplier dispute".
3. In the written submission filed on her behalf Ms Pless-Bennett's solicitors referred to the use of the word "consumer" in the Australian Consumer Law, to the statutory guarantee by a supplier to a consumer of the quality of the supplier's services, and to the presumption in the Competition and Consumer Act 2010 (Commonwealth) that a person is a consumer in relation to services provided. For reasons given above, whether Ms Pless-

Bennett was a "consumer" of services for the purposes of the Australian Consumer Law is beside the point. To bring her dispute within the definition of "consumer and trader dispute" in Chapter 7 of the Australian Consumer Law and Fair Trading Act 2012 she must establish that she was a "purchaser" of the services which are the subject of the dispute.

1. Mr Lithgow of Counsel for the removalist referred me to a decision of Judge Macnamara, in the capacity of a Vice-President of VCAT, in Virtually Made Pty Ltd v Rigby Cooke [2018] VCAT 579. In that case a supplier of goods was owed the purchase price for the goods. By an arrangement between solicitors the purchaser placed funds with the trust account of the purchaser's solicitors as stakeholder pending the resolution of a dispute about the goods. The purchaser went into liquidation. The supplier brought the proceeding against the solicitors, who responded by applying for the proceeding to be struck out for want of jurisdiction. Granting the application, his Honour said (at [14]), after having referred to the definition of "consumer and trader dispute" in s 182(1):
   1. The structure of the definition of consumer and trader dispute which I have read earlier, indicates that what is contemplated is that the disputes which the Tribunal can adjudicate upon are disputes between two sides of supply arrangements. The mere fact that there is a supply arrangement does not in itself enable a claim to be brought against someone who might be regarded as a supplier to another party under a different arrangement. No doubt, Rigby Cooke was a supplier of services and Maxtra was a purchaser of those services but the definition of consumer and trader dispute, in my view, requires that the parties be on different sides of the same supply relationship, not parties to different supply arrangements. In those circumstances, I believe that this proceeding falls outside the Tribunal's jurisdiction and should be terminated for want of jurisdiction.
2. Adopting Judge Macnamara's language, I say that although Move On Removalists became a bailee of Ms Pless-Bennett's goods, the supply arrangement was between the removalist and her father and so her dispute with the bailee is not a "consumer and trader dispute". It falls outside VCAT's jurisdiction.
3. This case illustrates that when X as a supplier supplies services to Y as a purchaser of the services, and poor performance of the services causes loss or damage to Z, the dispute between X and Z is not a "consumer and trader dispute" and VCAT has no jurisdiction to determine it.
4. The proceeding will be struck out for want of jurisdiction.
5. Ms Pless-Bennett has a cause of action against the removalist, as bailee of her goods, that she could pursue in a court, but not at VCAT. I am not implying that she should pursue it in a court. I have decided nothing about the merits of her claim.
6. During the hearing Mr Lithgow said that in the event of the strike-out application being successful his client would want to make an application for an order for costs. I will reserve liberty to make such an application, but in view of the outcome where a self-represented person has made an error of law in bringing the claim to VCAT it would require a considerable feat of advocacy to persuade me to make an order for costs.