Applicant Seeks Damages Due to Unfair Terms and Unconscionable Conduct

Atamian v eBay Australia & New Zealand Pty Ltd (Civil Claims) [2021] VCAT 769 (19 July 2021)

The Applicant asserts that eBay ANZ has exhibited misleading, deceptive, and unconscionable conduct as well as provided unfair terms in its Agreement with him.  He alleges that these are violations of the anti-competitive conduct which is provided in the Australian Consumer Law.  The Applicant seeks damages from the Court. 

Facts:

The applicant, Mr Atamian issued proceedings against eBay Australia & New Zealand Pty Ltd (eBay ANZ).  Mr Atamian claims that the User agreement of eBay ANZ contains unfair terms which lessen the competition in the marketplace and that it engages in unconscionable, misleading and deceptive conduct.  Mr Atamian sought $15,000.00 in damages and for the tribunal to require eBay ANZ to implement policies on their website that clearly state that non voidable legal terms.  Orders that eBay ANZ implement systems that are just and in line with its true KPI requirements and limiting penalties eBay ANZ applies to a reasonable amount were also sought.  eBay ANZ stated that it has no legal relationship with the users of the website and that they only owned the website.  eBay ANZ has repeatedly requested that eBay GmbH be substituted as respondent. Mr Atamian has denied that he has entered a contract with eBay GmbH and refused to consent to the substitution.  He asserts that if a trader trades in Australia the contract is with eBay ANZ, not eBay GmbH because eBay GmbH is a Swiss company. 

Mr Atamian claims that the return policy, as required to be stated, is limited to the seller either advertising that returns are “accepted” or “not accepted."  He alleges that contrary to the Australian Consumer Law, by stating on his website that returns are “accepted," eBay GmbH forces him to accept all returns by his customers, regardless of the reasons for the return. 

Issues:

I. Whether or not there is any contractual relationship between Mr Atamian and eBay ANZ.

II. Whether or not eBay ANZ contains unfair terms. 

III. Whether or not eBay ANZ engaged in unconscionable, misleading and deceptive conduct. 

Applicable law:

Australian Consumer Law  ss 20 and 22 - provides that a person must not, in trade or commerce, engage in conduct that is unconscionable.

Australian Consumer Law  s 23 (3) - provides that a consumer contract is defined as a contract for the supply of goods or services to an individual for personal, domestic or household use or consumption.

Australian Consumer Law  s 24 (3) - provides that a term is transparent if expressed in reasonably plain language, is legible, presented clearly, and readily available to any party affected by the term. 

Analysis:

The Agreement governs the use of eBay services and includes its rules and policies provides in its Clause 1 that the entity one is contracting with is eBay Marketplaces GmbH, Helvetiastrasse 15/17, 3005 Bern Switzerland if one resides in Australia.

Mr Atamian is a business operator and is not using eBay for personal, domestic or household purposes.  Therefore, up to 12 November 2016 he could not avail himself of the unfair contract term provisions in the ACL.  Mr Atamian was not able to address any of the requirements under section 24 of the ACL which make a term in a contract unfair and therefore void.  While Mr Ataiman is a self-represented litigant and is not expected to have detailed legal knowledge, each of the requirements under section 24 need to be addressed by the Tribunal. 

eBay GmbH required Mr Atamian to update his listings to include the manufacturer’s part number and the global trading item number for each item listed by Mr Ataiman for sale.  Mr Atamian says that complying with this requirement caused him to spend needless time on the task and to suffer financial loss.  This product identifier requirement improves the functionality of the eBay platform and is a necessary improvement.

Conclusion:

The Court concluded that Mr Atamian has not provided any evidence to the Tribunal to prove that he has any contractual relationship with eBay ANZ.  The claim by Mr Atamian in relation to unfair terms is dismissed.  The Court is not satisfied, on the evidence presented, that asking traders to identify their products is harsh and oppressive within the meaning of unconscionable conduct.  The Court ordered to dismiss the application.