VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO.C6303/2019 & C9473/2019
CATCHWORDS	
Agreement between a provider listing accommodation on the web; loss of income; reinstatement on website; mitigation of losses; applicant not proven case on balance of probabilities	

APPLICANT	Asim Shahzad	
RESPONDENT	Airbnb Australia Pty Limited ACN:153 841 943	
WHERE HELD	Melbourne Video Conference	
BEFORE	D. Calabrò, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	28 October 2021	
DATE OF ORDER	9 December 2021	
CITATION	Shahzad v Airbnb Australia Pty Limited (Civil Claims) [2021] VCAT 1477	

Order

The applications are dismissed.

D. Calabrò 
Member			

APPEARANCES:		
For Applicant	In person	
For Respondent	Ms Jackie Naher, solicitor	

Reasons
BACKGROUND SUMMARY
1	This is an application by Mr Shahzad (the Applicant in both matters) against Airbnb Australia Pty Limited (the Respondent in both matters) for the sum of approximately $26,000.00 plus interest for the Respondent’s failure (a) to pay monies due to him for rentals and (b) to reinstate the Applicant’s home on its website after the listing had been suspended.
2	The Applicant had listed his holiday home with the Respondent. He claims that at one stage the Respondent did not transfer monies that had been paid by his customers in renting the premises $17,740.00.
3	He also claimed that the Respondent made short payments on Sunday rates, by this he means that the Respondent did not pay the money that persons had paid for Sunday rates $4,995.00.
4	He claims that the Respondent as part of its policy either made short or no payments for damages to the accommodation by parties $6994.00.
5	The Applicant calculated that he was owed $7178.99 for loss of earnings since July 2019 plus interest.
6	At a Directions Hearing dated 28 October 2019, the Respondent conceded that it owed the Applicant the sum of $17,740.00 and would pay the Applicant this amount as soon as possible once it received bank details.
7	On 21 January 2021, the Respondent at a Directions Hearing told the Tribunal that it still had not paid the agreed outstanding amount to the Applicant as he had not provided his bank details. The Applicant did not attend the Directions Hearing.
8	The matter was scheduled for a compulsory conference on 17 February 2020 and the Tribunal ordered that the Applicant could renew the application by 30 June 2020 or the matter would be marked withdrawn.
9	On 9 June 2020 the Tribunal ordered the application to be reinstated after the applicant sought reinstatement. 
10	The matter was again listed for a compulsory conference on 11 August 2020 but the parties could not reach a settlement.
11	After several Directions Hearings, the matters were listed for hearing on 9 April 2021. At this hearing the matter was converted to a further Directions hearing and the Applicant’s claims for both matters were limited to 
a.	$4,995.00 short payments on Sunday rates
b.	$6,994.00 short or no payments on damages
c.	$7,178.99 for loss of earnings being no bookings since 27 July 2019
d.	Interest
‘No other claims will be raised at the hearing’.
12	The Respondent confirmed that it had transferred the sum of $19,995.69 to the Applicant’s bank account on 18 May 2020.
13	The total of the Applicant’s claim is $19,167.99 plus interest.
14	These reasons and decision relate to both applications in files C9473/2019 and C6303/2019. They are made by the Applicant and the same Respondent relating to the same claims. The Tribunal at Directions (see para 11 above) noted that all claims and amounts have been consolidated.
15	The Applicant must prove his claim on the balance of probabilities. 
THE APPLICANT’S CLAIMS and RESPONDENT’S RESPONSES
These are summarised as follows:
SHORT PAYMENTS ON SUNDAY RATES: $4,995.00
16	The Applicant claimed that the Respondent has not paid the appropriate amounts for Friday to Sunday rates.
17	He claimed that the studio rate for Monday to Thursday was $95.00 per night and the rate for Friday to Sunday was $145.00 per night.
18	He provided to the Tribunal a printout of the Airbnb listing. This document did not provide any details of the Sunday rates as he said that the Respondent had not given him access to his account. 
19	The Applicant kept referring to documents such as listings for his property but did not provide them to the Respondent or the Tribunal.
20	The Respondent stated that it had given access (as per the Tribunal’s order of 8 December 2020). Access was granted for 15 December 2020 and the Respondent tendered documents at page 23 to 25 inclusive showing that access was granted. The Tribunal accepts on the evidence that the Respondent granted access to his account details.
21	The Applicant has not provided any satisfactory evidence that he was not given access to his account by the Respondent. I do not accept a photograph of a log in page as sufficient evidence to show that the applicant was unable to access his account. The applicant had ample opportunity to ask the Tribunal to list the matter for further directions and advise of the difficulties he alleged. This did not occur.
22	The Respondent submitted that all rates are set by the Applicant not the Respondent. It submitted that the rates set by him were on the website and they were not liable for the Applicant not listing different rates on his web listing.
23	The Respondent noted (13 October 2020) in its response to the points of claim that the Applicant did not list the cost of cleaning and weekend rates in the listings and could not have done so once there were bookings. 
24	The Tribunal is not satisfied that the Applicant has proven his case on the balance of probabilities. There is no evidence before me that shows there were different rates for Friday to Sunday in his listing and the Respondent was liable to pay the alleged shortfalls. This claim is dismissed.
APPLICATION FOR REINSTATEMENT OF THE PROPERTY ON THE RESPONDENT’S WEBSITE
25	The Applicant sought an order by this Tribunal that the Respondent reinstate him on its website. As noted in the Tribunal’s order dated 9 April 2021 the Applicant’s claims were limited to those listed in paragraph 11 of this order. Given this, the application for reinstatement is dismissed. The Tribunal also rules that it does not have jurisdiction to order the Respondent to enter into contractual agreements. The agreement was terminated by the Respondent according to the terms and conditions of the agreement. As stated, above application for an order that the Respondent reinstate the Applicant on its website is dismissed.
CLAIM FOR LOSS OF EARNINGS: $7178.99
26	The Applicant claimed that he has lost earnings because the Respondent suspended his listing on its website between July and October 2018.
27	The Respondent stated that the suspension occurred because there was a complaint about the Applicant’s installation of surveillance cameras on the property that was against the agreement.
28	The Respondent noted that they had written to the Applicant to seek his response to their request to remove all cameras that breach their agreement and to respond to their request for further information as to the location of these. They claim that there was no response from the Respondent.
29	The Applicant is required to mitigate his loss, this means he is required to minimise his of earnings from rentals because of the suspension from the Respondent’s website.
30	In British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd, [1912] AC 673 Viscount Haldane stated: 
“The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. 
The rationale underlying mitigation is to encourage plaintiffs to be self-reliant and to discourage waste. While it is sometimes referred to as a duty on the plaintiff to mitigate, this is strictly speaking inaccurate as a plaintiff’s failure to mitigate does not expose the plaintiff to any legal action; it merely reduces the damages payable to the plaintiff for those losses which the plaintiff could have avoided. The standard expected of the plaintiff “is not a high one, since the defendant is a wrongdoer”. Thus, the plaintiff must act reasonably and take reasonable steps to reduce the loss suffered once the plaintiff is aware of the breach. Reasonableness does not require that a plaintiff must adopt the most effective mitigating course of conduct at an excessive cost …” 
31	The Applicant told the Tribunal that he has lost a significant amount of money because the Respondent suspended his listing for having security cameras that were situated in areas that were against the Respondents terms and conditions.
32	He claimed at the hearing that he had moved or removed the cameras as requested by the Respondent as per their terms and conditions.
33	He has not provided any evidence of the removal these cameras to either the Tribunal or the Respondent. The only documentation he provided was a PayPal receipt for a purchase from Swann Communications Pty Ltd for a recorder and 8 cameras in 2016 and a further receipt for a motion sensor light (2016). 
34	I note from emails, that the Respondent had on numerous occasions requested that the cameras be removed or moved according to the terms and conditions of the agreement. The Tribunal had noted in its orders dated 17 February 2020 the Applicant would move these cameras and provide evidence to the Respondent. However, he did not do so.
35	He claims the amount of $7178.99 plus interest for loss of earnings because of his listing’s suspension by the respondent. He provided the Tribunal with a spreadsheet that is based on his previous earnings and stated that this was a projection of his loss.
36	The Tribunal is not satisfied with this evidence, it is a projection not based on any sound basis or supported by any evidence. He did not provide the Tribunal with any credible evidence regarding this loss, such as previous tax returns, profit or loss statements or any documentation from an accountant.
37	The Applicant told the Tribunal that he has not attempted to list his holiday home with any other accommodation website such as Stayz (this is a website that enables persons to list their homes subject to terms and conditions and parties are able to book those homes). He said the home has remained empty since 2019.
38	The Tribunal notes that in March 2019 and over the ensuing months to late October 2021 there have been between 4 and 6 metropolitan and statewide lock downs as mandated by the State Government due to the COVID-19 pandemic. 
39	This has meant that because of the 4-6 mandatory lockdowns, persons would not have been able to travel or to stay in accommodation unless the accommodation was not in a mandatory lockdown area.
40	It is reasonable to assume that there was a downturn in holiday accommodation bookings because of the lockdown. Persons, even if they had booked accommodation, could not have accessed it and in many circumstances (if a cancellation was due to COVID-19 lock down or the booking was ‘frustrated’ because of COVID) the persons booking the accommodation may have been entitled to a refund. 
41	The Applicant’s claim for loss of income is dismissed. He has not proven to the Tribunal, on the balance of probabilities the amount of his claim, provided evidence of the loss and he has not attempted to mitigate his loss by either listing it on another accommodation website or using a real estate agent to list the house for rent.
DAMAGES $6994.00
42	This claim relates to cleaning fees ($55.00 - $70.00 for each listing). The Applicant said that each guest was required to pay this amount as part of their hiring. 
43	The Respondent has stated that it is not responsible to reimburse the cost of cleaning to the Applicant as set out in its terms and conditions.
44	The Respondent submitted that the cost of cleaning is not included in its host guarantee agreement. It submitted that the host guarantee terms at page 70 exclude the cleaning costs. Cleaning is not a covered loss. This would be a matter between the Applicant and the people who rented the property.
45	The Applicant said that the property had been rented by ‘Abigail’ who then permitted her children to have ‘schoolies’ party there. As a result, the toilet was damaged and it cost $1830.00 to repair.
46	The applicant was unable to provide any evidence as to the damage to the property or evidence as to the cost to repair the damage.
47	The Respondent noted that it had reimbursed the sum of $1983.33 to the Applicant for a claim against its host guarantee.  This was after the Applicant provided evidence of the damage and evidence of the cost of rectification. This claim was processed according to its terms and conditions and the Applicant was paid on or about 27 March 2019 in compensation for the damage.
48	The Respondent submitted that under its host guarantee there were several requirements (at page 68 of its host guarantee) that needed to be satisfied in a claim. The cover related to covered property, not external. There was a requirement that the Respondent provide good evidence in the form of photographs, receipts, and invoices. Despite requesting these from the Applicant, they were not provided.
49	I do not accept the Applicant’s contention that he could not provide this evidence as he did not have access to his account with the Respondent. It is not credible that a person running a business would not keep original or copy documents regarding damage or loss. 
50	The claim for damages is dismissed. I am not satisfied that the Applicant has proven his case on the balance of probabilities. I am satisfied that the Respondent sought details of the damages including photographs and quotations or invoices, however, the Applicant did not provide these. These were also not provided to the Tribunal for the hearing.
51	I have noted the large number of documents and submissions made by the Applicant. He is not a lawyer and provided these documents without legal assistance. I note that they were confusing and disordered. His evidence to the Tribunal was confusing and there was little evidence to support his claims.
52	For the reasons above I dismiss the application in both matters as noted at the beginning of this decision.
53	No order as to costs.

D. Calabrò
Member