QLD Business not Registered in Australia - Should I Sue?

[Joan Morgan]

Hi, I paid a company for a service. I was on the phone to them and they created a PayPal button for me. After I paid them over $10,000, I found that they were not registered in Australia, had no abn or acn. They then did a dreadful job that wasn't worth anything so I asked for my money back, they won't correspond with me any longer.

The woman who scammed me is an Australian citizen, however all the money goes to a US PayPal account. They have threatened me with a defamation suit if I don't stop talking about them on social media.

I have a PO Box as an address and they do seminars regularly so I could easily give them court papers. The only thing is, do I sue her? What else can I do, I have already reported them to the AFP (Australian Federal Police), Fair Trading, ASIC.

Thanks.

 

[Tracy B]

Hi Joan,

You might be able to sue them in Australia because the damage was suffered in Australia. Do they have a branch or office in Australia? What happened when you contacted Fair Trading and ASIC? Were they able to help you?

What services did you buy?

You could try and sue them under:

• Breach of contract: what standard/quality of service did they guarantee under the contract? What does the contract say? Also, is there a governing law or exclusive jurisdiction?
• Misrepresentation: did they say anything that mislead or deceived you? For example, did they make out that they were from Australia?

Their threat to sue you for defamation seems to be a scare tactic. Generally, a customer indicating dissatisfaction with a service/product will not constitute defamation if the statement is (1) belief or opinion, or (2) based on reasonable grounds. However, if they are suing you in defamation under US law, then you will need to look to US law, which might be different from Australian defamation law.

 

[Ivy]

Hi Joan,

Firstly, I agree with @Tracy B that we need more information about the situation i.e. can you explain what type service you bought as well as why the service wasn't provided properly?

Secondly, have you followed this up with Paypal? What kind of insurance do they offer to purchasers?

Thirdly, because the service is less than $40000 in value and is being provided in Australia, it is covered by the Australian Consumer Law. This means that there are certain guarantees including that a service will be carried out with care and skill, be fit for the purpose/ provide the results agreed to and be delivered in a reasonable time if there is no agreed end/ service delivery date. These guarantees form part of the Competition and Consumer Act 2010.

Therefore if the service provided breaches one or more of the consumer protection guarantees then you have options for refunds, service re-provided, repair etc, depending on the gravity of the breach and what is appropriate in the circumstances. If this person is refusing to speak with you then you can take them to court for a remedy.

Here is a concise list of the consumer guarantees: Consumer guarantees | ACCC

 

[Joan Morgan]

The company they are trading from is registed in Nervad and the US, they have no address they are willing to give me to serve them notice. Asic told me to do an online form, as did the police -ACORN no government department has helped including Fair Trading who suggested Legal Aid who said it was commercial and they didn't want to know. I have written Misrepresentation evidence.

I purchased internet marketing and web design services, which crashed over and over again until a script error is read across the page, it is unusable. They dragged out the service to over 6 months, at the time Paypal didn't have their 6 month guarantee. I have also contacted visa, it is now 10 months since purchase.

They refuse now to comment on any of my correspondence, have sent a letter from a solicitor in the US which basically says to stop talking about them. I don't know where to head now, who enforces consumer guarantees? The person operating in AU as an AU citizen is not registered as a company director however says that she is.

What is left to do?
Thanks heaps

 

[Tracy B]

Hi Joan,

From my experience with Fair Trading and the other ombudsmen in Australia, they do not seem to cover internet services. Consumer guarantees should cover internet services as well, so long as the services cost less than $40,000 and contracted after 2011.

You can try pursuing this action under consumer law in QCAT. However, given they are in America, they may not want to cooperate with you and make it hard for you to enforce any award determined by QCAT. Speak with a consumer lawyer about whether it is worth pursuing them this way. You can contact your local community legal centre for a free consultation or try one of these lawyers recommended to you here: Get Connected with the Right Lawyer for You - LawAnswers.com.au.

 

[Joan Morgan]

Thanks, I have spoken to a lawyer already and it's too expensive to go down this path for under $20k. It looks like smart operators can trade in Australia and get away with nearly anything. Thanks for your assistance.

 

[Tracy B]

Hi Joan,

Thank you for updating us and I'm sorry to hear this is the case. Unfortunately, there are times when things happen to you and you can't rectify it. Take it as a lesson learnt and beware when making online transaction, especially if the company is located overseas or not very well-known.