VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C7515/2019
CATCHWORDS	
Misleading and Deceptive conduct, unfair terms, unconscionable conduct, anti-competitive conduct.

APPLICANT	Axcel Atamian t/as Experienced Computers and Business Solutions (ABN: 76 926 637 968)	
FIRST RESPONDENT	eBay Australia & New Zealand Pty Ltd (ACN: 086 288 888)	
SECOND RESPONDENT	eBay Marketplaces GmbH	
WHERE HELD	Videoconference	
BEFORE	Member T. Petranis	
HEARING TYPE	Hearing	
DATE OF HEARING	2 December 2020 & 10 March 2021	
DATE OF ORDER	19 July 2021	
CITATION	Atamian v eBay Australia & New Zealand Pty Ltd (Civil Claims) [2021] VCAT 769	

Order

1	The application is dismissed for the reasons that follow.

T. Petranis
Member			

APPEARANCES:		
For Applicant	In person	
For Respondents	Ms R. Thiesseu, Solicitor	

Reasons
1	The applicant, Mr Atamian issued proceedings against eBay Australia & New Zealand Pty Ltd (eBay ANZ). During the course of the proceeding, eBay Marketplaces GmbH (eBay GmbH) was joined as a respondent. 
2	Mr Atamian is a trader of third party/after market spare parts for brand name laptops and has traded on the eBay platform since 14 September 2001 and continues to trade. The claim before the Tribunal is for the period 2014 to 2019.
3	Mr Atamian claims that the User Agreement (Agreement), which incorporates the rules and policies applicable to the use of the eBay site, contains unfair terms and terms that lessen competition in the marketplace. He also claims that eBay ANZ has engaged in unconscionable conduct and misleading and deceptive conduct. 
4	Mr Atamian is seeking $15,000.00 in damages. He is also seeking the Tribunal to make the following orders:
a	Orders requiring eBay ANZ to implement policies on their website that clearly state that non voidable legal terms which are expressly stated are binding and that these terms are required to be included as part of the dispute evaluation process.
b	Orders requiring eBay ANZ to implement policies on their website that reflect all aspects of the Australian Consumer Law (ACL), particularly sellers’ rights and these are to be included as part of eBay ANZ’s operation especially in evaluating a dispute.
c	Orders that eBay ANZ implement systems that are just and in line with its true KPI requirements.
d	Orders limiting penalties eBay ANZ applies to a reasonable amount.
5	Mr Atamian is concerned that many small businesses are affected by eBay ANZ’s policies and conduct.
Background 
6	Mr Atamian lodged his initial Points of Claim with his application to VCAT on 4 October 2019, with eBay ANZ as respondent.
7	On 10 October 2019 and on 4 November 2019 Mr Atamian sent in Particulars of Loss and Damage and on 16 March 2020 he sent in Amended Points of Claim.
8	On 1 October 2020 Mr Atamian provided a Further Amended Statement of Claim dated 29 September 2020 and on 29 October 2020 further supporting documentation was provided.
9	The respondents provided a defence to the original claim and the Amended Points of Claim on 27 May 2019, 5 December 2019 and 14 October 2020. On 28 October 2020 they provided the Tribunal with a documents folder.
10	The matter was heard over two days on 2 December 2020 and on 10 March 2021 via teleconference. At the end of the hearing, I reserved my decision.
11	Mr Atamian’s oral evidence at the hearing was more closely aligned to his initial Points of Claim filed in his application rather than his final Further Amended Points of Claim dated 30 September 2020 which appear to be a generalised summary of the initial Points of Claim.
12	As Mr Atamian was a self-represented litigant and the respondents were represented by lawyers, with the consent of eBay GmbH and eBay ANZ, I decided to take into account Mr Atamian’s Points of Claim in his initial application, as well as his further Amended Points of Claim where relevant. I also took into account all of the respondent’s Points of Defence to Mr Atamian’s Points of Claim. I used the initial Points of Claim and the applicant’s oral evidence to expand on the items in the applicant’s further Amended Points of Claim of 30 September 2020.
13	On 4 November 2019 Mr Atamian filed Points of Loss and Damage. His initial claim of $15,000 against eBay ANZ was amended to include $420,000 for loss of profit and a decline in his business. This was withdrawn on 16 March 2020 and Mr Atamian’s claim for damages reverted back to the original claim of $15,000.
The Proper Respondent
14	The applicant has issued proceedings against eBay ANZ. eBay ANZ stated that it has no legal relationship with the users of the website. eBay ANZ is the registered owner of the website only. 
15	eBay ANZ stated that Mr Atamian has entered into a contract with eBay GmbH and that eBay is the correct respondent in these proceedings. eBay ANZ has repeatedly requested that eBay GmbH be substituted as respondent.
16	On 14 October 2019, by order of the Tribunal, eBay GmbH was added as a respondent to the proceeding.
17	Mr Atamian has denied that he has entered a contract with eBay GmbH and refused to consent to the substitution of eBay ANZ. He insisted that if a trader trades in Australia the contract is with eBay ANZ, not eBay GmbH because eBay GmbH is a Swiss company.
18	Mr Atamian stated that eBay ANZ was registered in 1999 and continues to be the holder and operator of the domain - ebay.com.au. He further stated that eBay GmbH is used for eBay ANZ’s own accounting and financial purposes.
19	In his Amended Points of Claim dated 16 March 2020, Mr Atamian has provided the Tribunal with an auDA domain search of ebay.com.au which shows eBay ANZ as the registrant and a search of the Australian Business Number (ABN) register which shows eBay ANZ as having an ABN.
20	eBay ANZ drew the Tribunal’s attention to the Agreement (last posted online on 4 October 2019). The Agreement governs the use of eBay services and includes its rules and policies. Clause 1 of the Agreement, as is relevant, states:
1. Introduction
Welcome to eBay. By using the eBay.com.au website and any related service or tool (“the eBay services”) you agree to the following terms with eBay. If you have questions …
The entity you are contracting with is:
•	eBay Marketplaces GmbH, Helvetiastrasse 15/17, 3005 Bern Switzerland if you reside in Australia;
…
The introduction then lists all the different entities applicable to different countries.
Conclusion
21	On the evidence before me I find that Mr Atamian has not provided any evidence to the Tribunal to prove that he has any contractual relationship with eBay ANZ, other than his opinion.
22	Accordingly, on the basis of clause 1 of the Agreement I accept eBay ANZ’S submissions that the proper respondent is eBay GmbH and I dismiss the proceeding as against eBay ANZ.
23	As Mr Atamian has steadfastly refused to accept or consider the substitution of eBay GmbH as the respondent, the Tribunal would ordinarily strike out Mr Atamian’s claim on the basis that, as there is no contractual relationship between the parties, the Tribunal does not have jurisdiction to hear the matter.
24	However, given that eBay GmbH was joined as a respondent by the Tribunal and for the sake of completeness I will proceed as if Mr Atamian had named the correct party as respondent, being eBay GmbH.
Unfair Contract Terms
The Facts
25	Mr Atamian argues that the terms in the Agreement are unfair. He referred generally to contract law and the ACL. He stated that his treatment by eBay was unfair.
26	Mr Atamian says that under the terms of the Agreement eBay GmbH asks the seller to state their return policy clearly on its website. However, he claims the return policy is limited to the seller either advertising that returns are “accepted” or “not accepted”. Mr Atamian submits that by stating on his website that returns are “not accepted” he, and the other traders, are being forced by eBay GmbH to breach the ACL. 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.
27	Mr Atamian submits that he would be within his rights to refuse to accept a return in circumstances where the buyer changes his mind, found the item cheaper elsewhere, did not like the item, had no use for the item, knew or was made aware of the faults, misused the product in a way that caused damage, or asked for a service to be provided in a certain way against the advice of the business. However, according to Mr Atamian, eBay GmbH is restricting his ability to refuse these returns if he states on his website that returns are simply accepted.  Mr Atamian calls these returns “non meritorious purchases”.
28	Mr Atamian submits that according to the requirements of eBay GmbH, a request for a return by a customer is a request for a refund. eBay GmbH allows no option for an exchange. He is not even entitled to deduct shipping costs. Mr Atamian asserts that eBay GmbH takes whatever the buyer says at face value.
29	eBay GmbH denies that it is forcing Mr Atamian to breach the ACL. It submits that if any terms in the agreement are inconsistent with the ACL those terms would be void or not applicable. The eBay GmbH submits that Mr Atamian may choose not to accept returns for change of mind or remorse but he must accept returns as directed under the ACL. It submits that sellers are free to decide what their return policy will be.
30	eBay GmbH directed the Tribunal to its return policy contained within clause 10 of the Agreement, which was posted online on 14 October 2019. The previous policy was posted on 30 October 2018. It confirmed that the Agreement is amended from time to time, however, claims that eBay GmbH has operated in similar terms since at least November 2014.
31	Clause 10 is headed “Returns and eBay Money Back Guarantee” (eMBG) and states, as is relevant:
Buyers can request a return or report that they didn’t receive an item from their purchase history.
If the buyer is requesting to return an item for “change of mind” (or “remorse”) reasons, the seller’s return policy as stated in the listing will apply – including which party is responsible for return postage costs. Sellers may exercise their discretion to accept or deny a remorse return request if it falls outside their return policy.
If an item is not received or differs significantly from the listing, the eBay Money Back Guarantee Policy, which is part of the User Agreement and incorporated by reference, will apply. As stated in the policy, the cost of return postage for an item that is significantly not as described will usually be the seller’s responsibility.
Buyers and sellers agree to comply with the Money Back Guarantee Policy and Condition of returned items policy and acknowledge that we may automate some aspects of the returns process. You must also acknowledge and agree that we may exercise our reasonable discretion to make a final decision on any case – including an item returned for remorse reasons - where a buyer and seller cannot come to an agreement. If we resolve the case in the buyer’s favour, the seller will be required to issue a full refund to the buyer (including the postage costs), either by automatic reversal of the transaction …
As a seller you authorise and instruct us:
•	to automatically accept a return request on your behalf and provide a return postage label to the buyer, for return requests that fall within your returns policy;
•	to place return postage costs on your seller invoice, in cases where you are responsible for paying return postage;
•	to request PayPal to reverse the refund … in cases where the transaction is cancelled or the buyer returns an item in accordance with your listing’s return policy;
…
32	eBay GmbH submits that the eMBG Policy operates to protect buyers in circumstances where an item is not received or an item is significantly different to how it is described. It submits that:
(a) 	Generally, if a buyer is not able to resolve an issue with a seller, then they may ask eBay GmbH to step in and help under the eMBG Policy. 
(b)	Buyers will receive their money back from the seller if eBay GmbH determines that the eMBG applies, having regard to the eMBG Policy. 
(c) 	The eMBG Policy is referred to in clauses 10 and 24 of the Agreement and  
(d) 	The policy expressly notes that buyers and sellers permit eBay GmbH to make final decisions about all eMBG cases, including appeals.
33	eBay GmbH further submits that the eMBG Policy states that it does not operate as a product warranty and does not replace users’ rights under the ACL. It submits that sometimes the buyers are given protections over and above what is required under the ACL. eBay GmbH submits that this is not unlawful and is a matter that sellers agree to by listing items for sale on the eBay site.
34	eBay GmbH denies that the Agreement or the eMBG Policy is in breach of the ACL and submits that the terms are reasonably necessary to protect the legitimate interests of eBay.
35	Mr Atamian submits that the Agreement is contradictory and that legal principles are not followed when eBay GmbH applies the eMBG Policy and that the eBay staff who apply the eMBG Policy are not trained in the ACL or contract law. Mr Atamian says that eBay GmbH continually fails to make correct determinations in the area of damage to goods while in transit, return of goods claimed as faulty but which are not faulty and the forced acceptance of returns. Mr Atamian submits that these incorrect determinations make the terms of the Agreement unfair or at the very least eBay GmbH applies the terms of the Agreement in an unfair manner.
36	eBay GmbH submits that by trading on eBay the applicant had agreed and consented to these rules and policies. It submits that a user cannot operate an eBay store, as if it was a private website. eBay GmbH further says that the applicant is not bound to trade on eBay by the Agreement, and if he does not wish to trade on eBay, he is free to leave the eBay platform without penalty.
37	eBay GmbH submits that Mr Atamian has not provided any particulars, or adequate particulars, in relation to the incorrect determinations made by it concerning damage to items in transit and the return of items claimed as faulty.
Damages Claimed
38	Mr Atamian submits that between November 2014 and October 2019 he received approximately 800 requests for items to be returned. He says that two thirds of these requests had no merit as they involved the buyers changing their minds, incorrectly claiming faults, choosing the wrong item, or the items were uninsured and were damaged in transit.
39	Mr Atamian gave evidence that his losses included freight paid and not recouped and monetary compensation for the time he spent testing items to check if they were faulty. He equates his loss at a rate of $15.00 per non-meritorious transaction and is claiming $8,000. He submits this estimate is on the low side and is generous.
40	Mr Atamian produced a bundle of documents including excel spread sheets, (which I could not access) and documents headed “Invoice Detail”. Each sheet contained a date, title of the item, item number, the fee type and the amount. These were for the months July, August and September 2019. Another bundle of documents was headed “November 2014” and listed return requests and returns approved. These did not include any monetary amounts. These pages seemed to provide a snapshot of the sales and return requests and approvals for particular periods. There appeared to be no clear identification of the reason the products were returned.
41	eBay GmbH submits that it is difficult to respond to the claim for $8,000, as the losses and returns are not particularised or substantiated and therefore it is difficult to check the legitimacy of the calculations. eBay GmbH says that Mr Atamian has had three opportunities to amend his claim and his loss is still not particularised. 
42	eBay GmbH says that despite Mr Atamian’s alleged losses since 2014 he continued to use his eBay account to trade and continues to trade. It submits that he is therefore benefiting from using the eBay platform.
43	Mr Atamian claims that he has no choice but to continue to use the eBay platform to trade as the costs to move to an alternate platform are prohibitive. Accordingly, he is seeking specific rectification and relief over specific areas covered under the ACL.
The Law
44	Until 12 November 2016 the unfair contract term provisions under Part 2–3 of the ACL applied to standard form consumer contracts.
45	Under section 23(3) of the ACL, 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.
46	On 12 November 2016, section 23 in the ACL was amended to extend the unfair contract terms to small business contracts where at least one party is a small business that employs fewer than 20 people and the upfront price payable under the contract is no more than $300,000 (or no more than $1,000,000 if the duration of the contract is more than 12 months).
47	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.
48	Mr Ataiman entered the Agreement with eBay in 2001. The Agreement provides in clause 25 that the Agreement may be amended from time to time by eBay GmbH and if the sellers do not accept the amendments, they may close their accounts. The ACL provides if an existing standard form contract is varied on or after 12 November 2016, the law will apply to the varied terms. 
49	Mr Atamian can make a claim under the unfair contract terms under the ACL only from the time the Agreement was varied after 12 November 2016 as he is a small business trader who employs less than 20 people and the upfront price under the contract is less than $300,000. I note that neither party addressed this issue. Neither party advised the Tribunal when the Agreement was varied after 12 November 2016. For the purposes of my consideration of the claim by Mr Atamian I have assumed that the unfair contract provisions under the ACL apply to the Agreement from 12 November 2016.
50	Section 23(1) of the ACL states that a term of a consumer contract or a small business contract is void if (a) the term is unfair and (b) the contract is a standard form contract.
51	Section 24(1) of the ACL sets out the circumstances in which a term is “unfair”. There are three elements: the term causes a significant imbalance in the parties’ rights and obligations, the term is not reasonably necessary to protect the legitimate interests of the party who is advantaged by the term, and the term causes financial or other detriment to the other party (small business) if it were to be applied or relied on.
52	Section 24(2) of the ACL provides:
In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but it must take into account the following: 
(a)		the extent to which the term is transparent;
(b)		the contract as a whole.
53	Section 24(3) of the ACL provides:
A term is transparent if the term is:
(a)	expressed in reasonably plain language; and
(b)	legible; and
(c)	presented clearly; and
(d)	readily available to any party affected by the term.
Conclusion
54	Mr Atamian did not address any of the requirements under section 24 of the ACL which make a term in a contract unfair and therefore void. I acknowledge that Mr Ataiman is a self-represented litigant and as such is not expected to have detailed legal knowledge, however each of the requirements under section 24 need to be addressed by the Tribunal. Moreover, Mr Atamian needs to provide instances of the alleged breaches.  It is not enough for Mr Atamian to say that the clauses are unfair or that he has been treated unfairly.
55	First, I must look at whether the Agreement is a standard form contract. Section 27 of the ACL defines a standard form contract as a contract that is not designed to be individually negotiated but is required to be accepted in the form in which it is presented. Mr Atamian was presented with the Agreement when he started to trade with eBay GmbH and with the various amendment to the terms over the years and was required to accept them in the form they were presented to him. He had no power or opportunity to negotiate any of the terms. Therefore, I am satisfied that the Agreement is a standard form contract. 
56	Given that the Agreement is a standard form contract, to declare any of the terms unfair, Mr Atamian must prove firstly, that it would cause a significant imbalance in his rights and obligations arising under the Agreement and secondly, it would cause detriment to him (financial or otherwise) if it were to be relied on.
57	Mr Atamian stated that the returns policy and the eMBG policy is unfair and I believe what he is trying to say, and has said in other parts of his claim, is that there is a significant imbalance in the parties’ rights and obligations under the Agreement. Mr Atamian claims on the one hand, that eBay GmbH is forcing him to accept all returns, and on the other hand, that eBay GmbH is breaching the ACL. Mr Atamian did not provide specific evidence in relation to the transactions he is claiming are non-meritorious purchases. 
58	On the evidence before me I am satisfied that under the Agreement Mr Atamian can select what his return policy will be. The Agreement does not compel Mr Atamian to accept all returns unless he advertises on his site that he will accept all returns. Further, I am not satisfied on the evidence before me that eBay GmbH is forcing Mr Atamian to breach the ACL. 
59	The term of the Agreement related to refunds and returns operates in favour of the ultimate consumer; that is, the purchaser of Mr Atamian’s products. The policy encourages consumers to go to eBay for their products knowing that they will be able to return a product in accordance with the trader’s (in this case Mr Atamian’s) return policy. Accordingly, I do not find that this term favours eBay GmbH more than the applicant.
60	Moreover, under the terms of the Agreement, Mr Atamian can terminate the Agreement at any time and not use the eBay platform. eBay GmbH will not seek to enforce the Agreement for non‑compliance. Therefore, I find there is no significant power imbalance between the parties as Mr Atamian can walk away from the Agreement without penalty. He has a choice not to continue with the Agreement. As there is no imbalance between the parties, any terms contained within the standard form contract cannot be unfair terms, and the claim by Mr Atamian (including all the forms of relief he is seeking) must be dismissed. In the event I am wrong, I have gone on to consider the damages and relief claimed by the applicant.
61	Mr Atamian claims that he has suffered damages due to the returns policy; that is, that he has suffered financial detriment. On the evidence presented I find that Mr Atamian has not sufficiently substantiated his claim. There is no evidence before the Tribunal as to his exact loss. Mr Atamian has told the Tribunal that his losses are greater than $8,000 but that his claim is for $8,000. Mr Atamian has not provided any evidence to explain how the losses are made up. There are no invoices for items purchased. No return slips. No financial records. No proof that the returns were not warranted. Mr Atamian has not provided the Tribunal with the dates of the individual returns or the reasons other than very general estimates and approximations. Therefore, I am unable to assess which losses are covered by the ACL that covers business to business trade; nor am I able to quantify Mr Atamian’s loss or his financial detriment. 
62	Mr Atamian submits that the term is unfair because eBay GmbH makes incorrect determinations in deciding whether or not to accept the returns. Mr Atamian has not provided the Tribunal with any proof of these incorrect determinations except to say that eBay GmbH accepts whatever the purchaser says. There are no express instances of a return explained, or what error eBay GmbH has made in its determination process and what loss is attributable to that error. I am not satisfied that Mr Atamian has proven on the balance of probabilities that eBay is making incorrect determinations in deciding whether or not to accept returns from his customers or that making an incorrect determination renders the term unfair.
63	It is for the second respondent to prove that the term is reasonably necessary in order to protect its legitimate interests. eBay GmbH says that it is an online trading platform for millions of users worldwide. eBay GmbH’s policy has been tailored over the years to make eBay competitive and a leader in online sales. eBay GmbH stated that the Agreement and incorporated rules and policies are reasonably necessary for eBay to promote a consistent, safe and reliable online trading environment, including to protect both eBay GmbH, and its users, from risk of liability and fraud. 
64	I find on the evidence before me that the term is reasonably necessary to protect the legitimate business interests of eBay GmbH. eBay GmbH is marketed to online buyers as a safe and reliable trading environment in what is a very competitive online market. This provides eBay GmbH with an edge over other traders who may not have such a generous returns policy, which in turn brings more traffic to eBay and therefore more sales to its traders, including Mr Atamian.  
65	Further, in determining if a clause is unfair, consideration must be given to the extent to which the term is transparent and the Agreement must be viewed as a whole. On the evidence before me I find Clause 10 is presented in reasonably plain language. It is legible and presented clearly. It is also readily available online to Mr Atamian who is affected by the clause. Looking at the Agreement as a whole it is evident that the eMBG Policy is intended to act as a safeguard for buyers using eBay thus bringing more traffic to the platform and therefore more sales. Further, eBay GmbH is not seeking to bind Mr Atamian to the Agreement.
66	Accordingly, I do not find that the eMBG policy is an unfair term of the Agreement. The claim by Mr Atamian in relation to unfair terms is dismissed. 
Unconscionable Conduct
67	Additionally, Mr Atamian claims that eBay GmbH’s conduct was unconscionable in two instances. One was the requirement to identify each item he sold and the other was an issue with his account.
The Law
68	Sections 20-22 of the ACL state that a person must not, in trade or commerce, engage in conduct that is unconscionable.
69	Case law over the years has determined that conduct may be considered unconscionable if it is particularly harsh or oppressive. To be considered unconscionable it must be more than simply unfair, it must be against conscience as judged against the norms of society. The conduct must be deliberate and involve serious misconduct. 
70	Unconscionable conduct requires more than being unfair or unreasonable. It suggests “a high level of moral obloquy”. 
Product Identifier Requirement
71	Mr Atamian says that eBay GmbH implemented systems that are detrimental to him, non-beneficial to the buyer and only benefit eBay GmbH. On 1 March 2016 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.
72	Mr Atamian says that this was not necessary for him and did not add value or benefit to his business. In fact, he claims that complying with this requirement caused him to spend needless time on the task and to suffer financial loss.
73	eBay GmbH says that the item identifier requirement improves functionality on the site to the benefit of both buyers and sellers. The more details that are available to buyers, the better the search functionality.
74	Mr Atamian is seeking $8,000 in damages for the time that he and his son spent on identifying every product he had for sale. He estimates there were 16,000 products, each of which took a minute to list: that is, 16,000 minutes divided by 60, equals 267 hours, claiming $30.00 per hour, totalling $8,000.
75	Mr Atamian did not produce a list of the identified products nor any independent evidence of the time spent identifying the products.
Conclusion
76	On the evidence before me I find that the product identifier requirement improves the functionality of the eBay platform and is a necessary improvement. I find that this requirement was made for all traders and that the time spent identifying each item is part of the cost of doing business. Also, once this is done it does not have to be done again apart from new items being added and or discontinued items being withdrawn. I am not satisfied, on the evidence before me, that asking traders to identify their products is harsh and oppressive within the meaning of unconscionable conduct. As such the claim that there has been unconscionable conduct or that he has suffered loss has not been proven by Mr Atamian and this part of his claim is dismissed.
Accounts Issue
77	Mr Atamian says that an account was issued to him by eBay GmbH for an amount of $3,399.80 which was payable by 15 September 2019. Mr Atamian paid only $339.98 by error. He then received a notice from eBay GmbH on 20 September 2019 which stated he needed to pay $5,950. This notice included the overdue amount that he omitted to pay by mistake and an amount that was not due until 15 October 2019. He claims that eBay GmbH also terminated his advertising without further notice or enquiry.
78	Mr Atamian submits that eBay GmbH did not act reasonably and its reaction was heavy handed and oppressive. He says that eBay did not have adequate mechanisms in place, instead relying on automated systems that had a detrimental impact on him.
79	eBay GmbH says that the requirement related to payment is set out in its Agreement. It says Mr Atamian was sent out a reminder and he was able to negotiate a payment plan and was able to pay in two instalments. eBay GmbH denies that it has acted in a heavy handed and unreasonable manner. It says the fee policy provides that once fees are overdue, all accounts invoiced become payable. eBay GmbH says it needs to protect its business interests, and that if fees are not paid by the traders, there is a risk to eBay GmbH. It did not elaborate on what that risk is.
80	eBay GmbH submits that it is appropriate and reasonably necessary for it to implement automated systems and processes for certain aspects of the operation of its site in order to protect the legitimate business interests of eBay GmbH.
81	eBay GmbH submits that it has not singled out Mr Atamian. It says that its automated systems impact all users in the same way and deny claims that Mr Atamian is being targeted or impacted differently to other users. Additionally, it submits that Mr Atamian is free to close his account at any time.
Conclusion
82	I accept Mr Atamian’s evidence that he made an unintentional error in the payment of his invoice on 15 September 2019. However, I am not satisfied based on the evidence presented by Mr Atamian that eBay GmbH acted in a harsh and oppressive manner to him. On the evidence before me I do not find that eBay GmbH’s actions were to the degree of serious misconduct or that they were clearly unfair or deliberate. 
83	The consequences of late payment are set out in clauses 5 and 15 of the Agreement and Mr Atamian was aware of these terms. When eBay GmbH received the payment that was less than the amount owed, they were not aware that the payment was made in error. They approached it as they would any payment that was late or less than the amount owed. I find Mr Atamian was aware of the consequences of late payment as these were clearly set out in the Agreement. These are the same terms eBay GmbH applies to all its users. I accept eBay GmbH’s evidence that they did not single out Mr Atamian and when they were made aware of the error, they arranged for Mr Atamian to pay off the next invoice in two instalments in an effort to assist him.
84	On the evidence before me I am not satisfied that eBay GmbH engaged in unconscionable conduct and dismiss the claim.
Anti-Competitive Behaviour 
85	Mr Atamian asserts that eBay GmbH has engaged in anti-competitive behaviour and behaviour that lessens competition in the market by applying unfair terms which add to his operating costs and he needs to increase his prices to cover these extra costs.
86	eBay GmbH denies that there are terms in the Agreement that lessen competition in the market and says that Mr Atamian has not identified which terms he is referring to or how such terms impact on operating costs thereby disadvantaging consumers.    
87	Despite the parties’ engagement with the issue of anti-competitive behaviour, I make no substantive findings or determination on this issue on the grounds that the Tribunal has no jurisdiction to determine such matters. Behaviour that lessens competition in the market is a matter for the ACCC. Accordingly, this aspect of the claim is struck out for want of jurisdiction.   
Misleading and Deceptive Conduct
88	In his Further Amended Points of Claim dated 30 September 2020, Mr Atamian alleges in paragraph 21 that eBay GmbH engaged in misleading and deceptive conduct by:
a	implementing systems that have no transparency and failed to let him know exactly what to expect;
b	using terms in their Agreement that are contradictory and also fail to specify what they entail;
c	causing a significant imbalance in his rights and obligations;
d	applying mandates that were not reasonably necessary to protect its business interests; and
e	causing financial or other detriment to him.
89	Mr Atamian did not particularise each of the terms or the incidences that support or comprise any of these claims. He did not produce evidence of the misleading and deceptive representations, but only referred generally to his previous complaints.
90	eBay GmbH says that the Agreement and each of the policies which govern the use of the site are readily available online. eBay GmbH says it has dedicated customer service representatives available seven days a week to address questions from traders. eBay GmbH reiterates that the terms are reasonable to protect its legitimate business interests and that Mr Atamian is free to close his account at any time he chooses.
The Law
83	Section 18(1) of the ACL provides that—
a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
84	Where a breach of this section is established, a range of remedies are available including damages. 
Conclusion
85	The evidence provided by Mr Atamian does not support a finding that eBay GmbH has engaged in misleading and deceptive conduct under the ACL. 
86	The question that must be answered is whether eBay GmbH’s conduct was such that it misled Mr Atamian, with representations which were misleading and deceptive or representations that were likely to mislead or deceive.  In other words, were these representations capable of leading Mr Atamian into error.
87	In assessing whether there has been misleading or deceptive conduct, the standard is that of the reasonable person of the class to which the conduct is directed. That is, would not an insignificant number of reasonable members of that class be likely to be misled. 
88	There is no evidence before the Tribunal of what, if any, representations were made to Mr Atamian, or any other conduct by eBay GmbH, that was misleading or deceptive or that was likely to mislead or deceive. Nor was any evidence produced of any loss suffered by Mr Atamian due to relying on any representations or attributable to the misleading and deceptive conduct of eBay GmbH. 
89	I accept eBay GmbH’s evidence that the Agreement and each of the policies which govern the use of the site are, and have been, available to Mr Atamian at all times. Moreover, Mr Atamian is not bound to continue trading with eBay GmbH. He may cease trading at any time.
90	Accordingly, I am unable to conclude that eBay GmbH engaged in misleading and deceptive conduct, and this part of the applicant’s claim is dismissed.
Service Metrics
91	Mr Atamian complains about the service metrics and how it affects his business.
92	According to eBay GmbH, the Service Metrics Policy relates to service metrics and peer benchmarks that are used by eBay GmbH to evaluate the performance of the sellers. These concern the percentage of transactions that result in “item not as described” or “item not received” request from buyers. Where the metrics are evaluated for a seller to be “very high”, the policy makes clear that it may lead to increased “final value fees” being imposed on that seller. 
93	eBay GmbH says that information about selling fees when a user runs an “eBay store” are set out on the eBay Stores selling fees help page. That page states:
We may apply an additional final value fee due to either poor seller performance or service metrics, as described above, if an additional final fee value fee applies:
The store package final value fees for the total amount of the sale are increased by 4% (e.g. a 6% final value fee becomes 10%)
Listings will only attract one additional final value fee (i.e. listings that are subject to a 4% additional value fee due to poor seller performance won’t have an additional 4% fee applied due to poor service metrics)
The additional final value fee will apply on top of the standard maximum charge per sold item (i.e. the final value fee will be $400 + 4% of the total amount of the sale)
We’ll indicate which listings are subject to the additional final value fee on your seller account. 
94	Mr Atamian says that the service metrics which is an automated system can affect the selling fees, the visibility of an item and the seller’s rankings.
95	Mr Atamian says that eBay overcharged him $1,294.93. He says between 21 July 2019 and 20 August 2019 Mr Atamian’s sales were $29,423.75 and his fees should have been $2,459.83, but was instead charged $3,754.47.
96	Mr Atamian says that initially there was no information as to how the fees were calculated. eBay GmbH says that the fees have always been applied in the same way but now the calculations are spelt out in the selling fees help page for clarity.
97	Mr Atamian submits that eBay has unfairly altered the ranking and position of his items on the eBay website because of late payment of his account and because of incorrect determinations made against him under the eMBG Policy. He has asked that the Tribunal order eBay GmbH to remove or change the mechanism for evaluating the service metrics.
98	Additionally, Mr Atamian says that eBay GmbH unreasonably withheld information as to why his items did not rank as well as his competitors on the eBay website. He claims there is no transparency to see who a trader is benchmarked against.
99	Mr Atamian originally claimed substantial damages and loss of profit for this but subsequently withdrew his claim for damages and is only seeking the amount of $1,294.93 which he has rounded off to $1,300 which he claims he has been over charged by eBay GmbH.
100	eBay GmbH says that Mr Atamnian was notified on several occasions of having “high” or “very high” service metrics. In particular, between April and June 2019, Mr Atamian had a “very high” rate of “item not as described” returns in the “Computers/Tablets & Networking” listing category. eBay GmbH submits that pursuant to the service metrics policy and the Agreement it was entitled to take action, including by imposing additional final value fees, on certain listings by Mr Atamian.
101	In relation to the late payment of Mr Atamian’s account eBay GmbH says that the Agreement makes it clear that the seller is responsible for the payment of fees in a timely manner. It says that Clause 9 of the Agreement provides for various remedies in circumstances where there is a breach of the Agreement. It says such remedies include (among other things) deletion of listings, restriction of activities or suspension of membership. eBay GmbH says Mr Atamian failed to fully make payment of an invoice which was payable on 15 September 2019. After a payment reminder and a further invoice, eBay GmbH says it was entitled to take steps to put a hold on Mr Atamian’s account, and did so on 20 September 2019. It says that hold was lifted on or about 24 September 2019 following part payment of the account.  
102	In relation to the ranking system eBay GmbH says that the algorithm used to determine the ranking of items using eBay’s “search function” is highly commercially sensitive and confidential. It says it does not disclose information about the precise operation of the search function, as the system may then be the target of unfair manipulation by users. 
103	eBay GmbH submits that Clause 15 of the Agreement states clearly that the appearance of listings in search results may be based on factors including listing, format, title, bidding activity, end time, key words, price and postage cost, feedback and detailed seller ratings. eBay GmbH says it makes no representations or guarantees in relation to the ranking of items in the search or browse results.
Conclusion  
104	On the evidence before me I find it more likely than not that Mr Atamian was not unfairly penalised or targeted by eBay GmbH. eBay GmbH acted consistently with the terms of the Agreement and treated Mr Atamian in the manner it treated all other traders and consistent with the terms of the Agreement. I do not find that Mr Atamian’s loss of $1,300.00 is made out. I find that Mr Atamian had been notified by eBay GmbH that he had “high” or “very high” service metrics and under the terms of the agreement eBay GmbH was entitled to impose additional value fees.
Overall Conclusion
105	Mr Atamian has many varied complaints against eBay GmbH, but has failed to provide sufficient evidence to support those complaints. In most instances Mr Atamian is seeking to vary the terms of use in the Agreement. He has not however provided any basis on which the Tribunal would be prepared to interfere with the Agreement. 
106	As discussed above I am not satisfied that Mr Atamian has proven the basis for his claim nor am I satisfied that he has proven the loss he has claimed. In relation to the remedies claimed in paragraph 3 a. b. c. and d., I decline the request to redraft the terms of the Agreement as Mr Atamian has failed to establish that they are unfair or unconscionable. 
107	Mr Atamian says that he is concerned for all the other Australian businesses that may be affected. This proceeding concerns Mr Atamian and eBay GmbH alone. Any decision that is made will affect him and eBay GmbH. The Tribunal is not the regulator and nor does it take into account other businesses that may or may not be affected who are not parties to this proceeding. Moreover, any decision I make is not binding on other Tribunal Members or Courts.
108	Accordingly, for the reasons stated above I dismiss the applicant’s claim.

T. Petranis
Member