Galletti v Personal Management Consultants (PMC) Pty Ltd (General) [2004] NSWCTTT 424 (12 July 2004)

Last Updated: 20 August 2004

Galletti v Personal Management Consultants (PMC) Pty Ltd (General) [2004] NSWCTTT 424 (12 July 2004)

CONSUMER TRADER AND TENANCY TRIBUNAL

General Division

APPLICATION NO:	GEN 04/31062
APPLICANT:	P Galletti
RESPONDENT:	Personal Management Consultants (PMC) Pty Ltd
APPLICATION:	Money Order
APPEARANCES:	The applicant in person via telephone; Mrs. A Robinson for the Respondent
HEARING:	9 July, 2004 at Tweed Heads
LEGISLATION:	Consumer Claims Act 1998; Trade Practices Act 1974

ORDERS

1.	The name of the respondent is amended to Personal Management Consultants (PMC) Pty Ltd.

2.	The respondent is to pay the applicant $770.00 on or before 20 August, 2004.

REASONS FOR DECISION

APPLICATION

By an application filed 23 June, 2004 the applicant sought a money order in the sum of $770.00 being a refund of moneys paid to the respondent.

JURISDICTION

The Tribunal has jurisdiction to hear and determine this application pursuant to the Consumer Claims Act 1989.

PROCEEDINGS

I am satisfied:

(a)	that the applicant is a consumer;
(b)	that the respondent is a supplier of goods or services;
(c)	that the claim is a consumer claim;
(d)	that the claim is brought within the time limits imposed by the legislation.

APPLICANT’S EVIDENCE

The respondent conducts a dating agency operating out of Tweed Heads. The applicant saw an advertisement in a newspaper and contacted the number shown in the advertisement which put him in touch with the respondent. The applicant spoke to a representative of the respondent named “M...”. Mr. Galletti says that “M...” told him that there were three ladies in Dubbo that he could meet via the agency. He paid $55.00 to the respondent on 14 April 2004 and a further $165.00 on 16 April 2004. There were subsequent telephone calls between the applicant and a representative of the respondent. The applicant says that he was told that if he took up membership with the respondent there would be 6 women in Mudgee that he could meet. On 6 May 2004 Mr. Galletti paid a further $550.00 bringing the amount paid to that date to the respondent to $770.00. Mr. Galletti said that he was told that upon payment of the $770.00 he would be a member.

Mr. Galletti told the agency that he wanted to meet a woman who was single, a non-smoker, slim and without children. He supplied photos of himself to the agency.

He was contacted about what he thought about several women but many were ruled out because some had children, some were not slim and some did not want to go out with him.

Mr. Galletti says that when he made enquiries of the respondent in respect of meeting some of these women he was told that they were taken or that they had already met someone. When he did not receive any contact from the agency within two weeks of joining he says that “M...” told him there were no ladies available for him to meet and if he wanted to meet someone he would have to pay an additional $1,200.00. He says he was also told that the membership was for six months and if he did not find any one during that time his membership of the respondent would be over.

Mr. Galletti says that he was misled by what had been told to him on the telephone by the representative of the respondent. He said that prior to paying money to the respondent he was told there were plenty of women he could meet but after paying money he was told there were none available unless he paid more money to the agency.

Mr. Galletti said he may have signed a contract with the respondent but could not produce a copy.
RESPONDENT’S EVIDENCE

Mrs. Robinson produced the following documents:

(a)	a resume of Mr. Galletti with his photograph setting out his interests and hobbies etc;
(b)	a list of available women with details of their interests but no photographs. Two of these women were divorced and two had children.
(c)	Four pages of women from Mudgee, Dubbo and Orange. There were handwritten entries on these pages which Mrs. Robinson said were done by “H...” who was a director of the respondent. The entries show that these women were ruled out because they either had children, were too big, were not Australian or because the women did not find the applicant suitable. These pages contained black and white photographs of the women concerned.
(d)	A fax from Mr. Galletti to “N...” of the respondent stating “I will be able to complete payment on Thursday and will phone to let you know. I also wanted to know how you went with “K...”. Please phone me on my mobile today and let me know what she said. Can you also tell me if you have received my photos”;
(e)	A letter from Mr. Galletti dated 31/5/04 in which he makes a request to cancel his membership. He said “I feel that I was misled by what some people told me from when I first phoned. I was especially told that when I join there is no time limit to meet someone and that I would be put on hold if I did not meet someone. Now I am told that I only have a six months membership and that I need to pay an extra $1,200.00 to get into a higher level if I want to meet someone. I was also told that there were many women at Dubbo and six in Mudgee who were available to see me. And all this and not meeting anyone I would like a refund”.

Mrs. Robinson said that she understood that there was a contract between the parties but she could not produce a copy of it.

Mrs. Robinson confirmed that the agency had been notified by Mr. Galletti that he wanted a woman who does not have children, is a non-smoker, is slim and single. She said that Mr. Galletti is too hard to please. She said that she tried to get him a date with D Gough in Orange but Mr. Galletti said that she lived too far away. She said that she got him a date with K Timmins but Mr. Galletti has not returned his call. She said that she could have arranged other dates but the women are not suitable because they have children or they are not single.

Mrs. Robinson said that Mr. Galletti did not pay the full membership fee and that is one reason why he is not getting a better range of choice. The full membership fee is $1,290.00. She said that Mr. Galletti could not afford the full membership and the respondent gave him membership for $770.00. However, the membership given to Mr. Galletti was not the same as that available on payment of $1,290.00. For $770.00 he could be introduced to five ladies but for $1,290.00 he could be introduced to ten ladies.

Mrs. Robinson said that a presentation folder had been made with colour photos of available women but this would not be supplied to Mr. Galletti until he paid $1,290.00. She disputed Mr. Galletti’s contention that he was told that he had to pay $1,200.00 additional to the $770.00 already paid. She said all he had to pay was $420.00 to bring his payment to $1,290.00 to get the full membership.

Mrs. Robinson said that a woman called “J...” was Mr. Galletti’s perfect match but the respondent was not prepared to introduce “J...” to Mr. Galletti until Mr. Galletti paid the full membership fee of $1,290.00.

FINDINGS

I am satisfied as to the following on the balance of probabilities:

1.	Mr. Galletti made known to the respondent prior to taking up membership with the respondent that he wanted to meet a woman who was a non-smoker, slim, single and without children.

2.	The respondent informed the applicant prior to him taking up membership that there were women in Mudgee and Dubbo who met the criteria he requested.

3.	The information supplied by the respondent to the applicant induced the applicant to pay to the respondent $770.00.

4.	The majority of the women in Mudgee and Dubbo did not meet the criteria required by the applicant.

5.	The applicant was told that for $770.00 he would obtain membership of the respondent’s dating agency.

6.	For $770.00 the respondent cannot obtain full membership of the dating agency. The applicant must pay $1,290.00 for full membership and the membership is only valid for six months.

7.	The respondent is unilaterally seeking to change the terms of the applicant’s membership from the terms originally negotiated.

8.	The respondent is a corporation.

9.	The conduct of the parties is in trade and commerce.

10.	The conduct of the respondent was misleading and deceptive and the respondent is in breach of section 52 of the Trade Practices Act 1974.

11.	The misleading and deceptive conduct caused the applicant to pay to the respondent the sum of $770.00.

12.	The respondent is entitled to damages pursuant to section 82 of the Trade Practices Act 1974 and those damages are assessed in tort at $770.00.

Kim Holwell
Member
Consumer Trader & Tenancy Tribunal

12 July 2004