Hi mandurahmum,
Re Wirraway (Smythe v Thomas [2007] NSWSC 844)
I agree with Rebel*1*’s summation of this case (except that it was Smythe that was the highest bidder, not Thomas).
I don’t know if this item was listed on eBay “Motors”, in which case it should have been possible to set a reserve, or if it was listed on the general part of eBay, in which case it is not possible to set a reserve, only a starting price.
You can still set a reserve on the general eBay site in the US. eBay removed the ability to set a reserve in Australia, other than on Motors, some years ago.
Anyway, Thomas did set a minimum of $150,000. I understood that the problem arose when, after the auction, someone else offered $250,000 for the item and Thomas then wanted to avoid the auction “contract”.
The OP of this thread was indeed simply my cynical reminder of eBay’s most obviously disingenuous reasons for removing that ability; as are obviously disingenuous the reasons that eBay gives for doing just about everything that they do.
Sorry if I get a bit obstreperous at times, but having been in business for 40 years I, very early on, recognized that I needed an understanding of the basics of mercantile law and I obtained same via a very good primer (Yorston and Fortescue's “Australian mercantile law" 1981) that covers the basics of all forms of mercantile law. An interesting read.
Mr Thomas should have read something similar too; and even later he should have gotten better legal advice and saved himself the undoubted considerable additional cost of further arguing this matter.
(
http://www.biblioz.com/search.php?a=79&i=20231733)
Having said that I have not “studied” consumer law per se but I understand the logic involved: it is generally about ensuring “fairness” in dealings between those with power and those with little power (usually “consumers for personal use”).
Contract law, on the other hand, is not about fairness, but about certainty, and unless a court finds something materially unconscionable about a contract between supposedly otherwise “equals”, the main subject matter(s) of a contract will in all likelihood stand.
Let’s face it, if the main subject matters of eBay’s UA, and the like, were not logically enforceable the whole concept of online commerce simply could not work. People should be aware that in most cases (real estate transactions almost universally statutorily excepted) when they press that button they may be entering into an enforceable contract. For anyone to think otherwise is, in my opinion, naivety in the extreme.
Undoubtedly, we have all probably been naïve about some matter at some time (I know I have, and it cost me a great deal of money); one can only hope that one learns from the experience, as I hope Mr Wallace has, and not repeat the same mistake.
Do I have to then get every logical point across in the OP? That could be taxing. If I had to worry about that, I might never get to post anything in the first place. But, don’t worry, I too feel like leaving particular threads at times. Still, it’s not as bad as it used to be playing with the children in the old eBay “sand box” …