Shabandeh v Netregistry Pty Ltd [2017] NSWCATAP 116

Shabandeh v Netregistry Pty Ltd [2017] NSWCATAP 116

The respondent was entitled to discontinue the hosting service, but it had no contractual entitlement shown to delete the appellant's website, which had been paid for by the appellant. The 28 August 2015 email referred to removal of data, email data and hosting data and did not unambiguously notify that the website itself would be destroyed. The respondent could not rely on terms and conditions that were not incorporated into the oral agreement. By deleting the website so that it was no longer available to the appellant to receive or collect, the respondent breached the agreement and its conduct was at least misleading. The original decision was not fair or equitable in those...

Jurisdiction
Australia
Judgment Date
23 May 2017
Procedural Posture
Internal Appeal in a Consumer Claim / Appeal From a Consumer and Commercial Division Decision Dismissing the Appellant's Application for an Order That the Respondent Pay $9,791.00
Outcome
Appeal upheld; the order of 1 December 2016 was set aside; the application was remitted to the Consumer and Commercial Division for determination of the appropriate order or orders under section 79N of the Fair Trading Act.
Legal Topics
['consumer Claim' 'website Development and Hosting Services' 'misleading or Deceptive Conduct' 'deletion of Website Data' 'internal Appeal' 'remedies Under Section 79 N of the Fair Trading Act']
['consumer Law' 'contract Law'] ['consumer Claim' 'website Development and Hosting Services' 'misleading or Deceptive Conduct' 'deletion of Website Data' 'internal Appeal' 'remedies Under Section 79 N of the Fair Trading Act']

Case Brief

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Procedural Posture

Internal Appeal in a Consumer Claim / Appeal From a Consumer and Commercial Division Decision Dismissing the Appellant's Application for an Order That the Respondent Pay $9,791.00

Legal Issues

  1. 1 ["Whether the Tribunal erred in dismissing the consumer claim concerning deletion of the appellant's website after non-payment of hosting fees." "Whether the respondent's conduct, including failure to disclose that the website would cease to exist or be deleted if hosting services ended, was misleading or deceptive or a breach of the agreement." "Whether the respondent's email of 28 August 2015 gave sufficient notice or contractual entitlement to delete the appellant's website." 'Whether leave to appeal should be granted because the appellant may have suffered a substantial miscarriage of justice.' 'What order or orders under section 79N of the Fair Trading Act should be made.']

Ratio Decidendi

The respondent was entitled to discontinue the hosting service, but it had no contractual entitlement shown to delete the appellant's website, which had been paid for by the appellant. The 28 August 2015 email referred to removal of data, email data and hosting data and did not unambiguously notify that the website itself would be destroyed. The respondent could not rely on terms and conditions that were not incorporated into the oral agreement. By deleting the website so that it was no longer available to the appellant to receive or collect, the respondent breached the agreement and its conduct was at least misleading. The original decision was not fair or equitable in those...

Court Disposition

Appeal upheld; the order of 1 December 2016 was set aside; the application was remitted to the Consumer and Commercial Division for determination of the appropriate order or orders under section 79N of the Fair Trading Act.

Orders

  • ['Appeal upheld.' 'The order of 1 December 2016 made in GEN 16/43645 is set aside.' 'Application GEN 16/43645 is remitted to the Consumer and Commercial Division of the Tribunal for the purposes only of determining the appropriate order or orders under section 79N of the Fair Trading Act that should be made in the...