The Law Handbook 2024

Chapter 7.4: Taking action as a consumer 723 To lodge an application, an applicant may either visit VCAT and pay the fee over the counter, or complete and lodge an application form online with credit card details, or post the application with a money order, postal note, cheque or credit card details to: The registrar, Civil Claims List. (See VCAT’s contact details in ‘Contacts’ at the end of this chapter). If the application is not complete or unclear or if the incorrect fee is paid, the registrar will write to the applicant but not process the claim until the further information is provided or fee paid. Company, business name or sole trader If a VCAT order is to be enforceable, the parties must be correctly named. It is the responsibility of the applicant to do this. If the respondent runs a business, the correct name of the company or business, with the Australian Company Number ( ACN ) or Australian Business Name ( ABN ) must be supplied. Check with the contract, quote, invoice or receipt for the full name of the trader. A trading entity may be: • a company (with a name ending in ‘Pty Ltd’ or ‘Ltd’ and a nine-digit ACN); • individual(s) or company(ies) trading under a registered business name; or • an individual or partnership of individuals (e.g. husband and wife) trading under their own names. Evidence of the trader(s)’ name(s) and address in the form of the ACN or business name extract should be lodged with the application. A company search can be completed through the Australian Securities and Investment Commission (www.asic. gov.au; tel: 1300 300 630). Obtain a company search that shows the company’s ‘registered office’, because that is the address where the application form will be served. If the respondent trades under a registered business name, a business name extract must also be supplied. If the trader is an individual, it is important that full and correct names are stated on the application. Abbreviations or incorrect spelling can result in an unenforceable order. Under the ACL&FTA (s 192), a person can ask VCAT to order the Director of Consumer Affairs to provide the full name and address of a supplier who is unregistered or unlicensed. It is important to state the trader’s correct address. Check to ensure that the address you have is still current and, if not, obtain the current address before lodging the application. Where you have problems obtaining the correct details of a trader, Consumer Affairs Victoria may be able to help. If a company has gone out of business or is unlikely to pay its debts, and you believe that the company contravened the ACL, you may wish to name as a respondent an individual who you believe was ‘involved’ in the contravention of the ACL. This is complex and it is wise to obtain advice before doing this, to ensure that you have an arguable claim. Are all parties named? Goods may be purchased from a retailer (who made specific recommendations about them) and manu­ factured by another business (whose manufactur­ ing may be defective). Before completing the application form, the applicant should carefully consider whether all persons and/or businesses who could be at fault have been named. For example, a defective tiling job could involve the builder, the tiler, the supplier of the tiles, the manufacturer or importer of the tiles or the supplier or manufacturer of the adhesive. Generally, VCAT is required to apportion liability between each ‘concurrent wrongdoer’. VCAT is required by the WLAAIR Act to find what proportion of the loss or damage claimed was each respondent’s responsibility. For example, if a house is painted by a tradesperson using paint found to be defective, VCAT may apportion 60 per cent responsibility against the painter and 40 per cent against the paint manufacturer. Cross-applications Sometimes the reason a person or business has not paid an account is because they are not satisfied with the goods or services supplied or believe they have been overcharged. The consumer may lodge a civil claims application to claim compensation or to declare that they have been overcharged. The supplier of the goods or services would usually lodge an application for the price, identifying the application as a response or cross-application and providing a VCAT file number. Applications could be made the other way around, with the supplier getting in first to claim the price and the consumer then lodging the cross-application. To avoid delay or an adjournment, cross- applications must be made as soon as possible after notice of the first application is received.