Warbird Information Exchange

From The Australian Nation
Aircraft in eBay dogfight
Tracy Ong
October 02, 2006
THE contractual legalities of buying and selling on eBay are being tested in an Australian court for the first time in a case that it is claimed could destroy public confidence in the popular online auction site.
The case, involving the sale of a rare World War II aircraft, has reached the NSW Supreme Court, with a judge ruling that the plane cannot be moved from a hangar in Albury on the NSW-Victoria border until the dispute is settled.

Adelaide "warbird" enthusiast Peter Smythe is suing Albury radiographer Vin Thomas for allegedly breaking the rules of eBay by refusing to hand over the plane, a 1946 Wirraway, despite making the sale on the website.

The plane - one of only five in the world still flying - was put up for sale on eBay by Dr Thomas in August with a reserve price of $150,000. Mr Smythe was the only person to bid, matching the reserve price with just 20 seconds to go before the auction closed on August 25.

But unknown to Mr Smythe, Dr Thomas had already agreed to sell the plane to a Queensland buyer for almost $250,000. The offer was made during the seven-day auction period, yet Dr Thomas failed to take the plane off the eBay site. Mr Smythe now wants the NSW Supreme Court to order Dr Thomas to hand over the plane for the agreed amount of $150,000.

"The significance of the case is that in the event that the purchaser fails, it would appear that parties cannot rely upon or have any confidence to enforce agreements and auction results arising on the eBay electronic online auction and trading system," Mr Smythe's lawyer, Trevor Hall, said.

EBay spokesman David Feiler said sellers listing items in certain categories, such as houses, did not enter a binding contract to carry the transaction once the auction ended. But he would not comment on whether a plane fell into one of those categories.

The online auction giant, which has more than three million Australian members and 157 million worldwide, has not responded to Mr Smythe's call for help to pay for the case.

Mr Feiler denied the case would undermine the integrity of transactions made on eBay, through which more than 3000 Australians are estimated to make a full-time living by buying and selling goods.

"In the event that an item is not received, we do have an online dispute-resolution process to deal with that (and) there are buyer protection programs that protect purchasers for certain amounts," he said.

"I did not expect anybody would pull this sort of stunt," Dr Thomas said. "The Queenslander gave us a quote to buy it, he did exactly what I asked him to do and the fellow from Adelaide snuck in under my guard."

But Mr Smythe sees it differently. "I've used eBay a bit to sell items and (the rules are) very clear," he said.

Dr Thomas, a first-time eBay seller, owes the dotcom more than $2000 in fees and commission because the auction ended in a sale. "I feel like I've been hung out to dry," he said.

Without having recently seen the plane, aircraft valuer David Gardner said the Wirraway - 755 of which were built in Australia between 1937 and 1946 - would be worth between $150,000 and $200,000.
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You would think an aircraft that rare would be at least listed with a broker.
Robbie

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interesting!

in a nutshell, if you don't want to sell it, then don't put it on ebay. If you realize after selling something for $20 that it was actually worth $60, then tough luck, you should have done your homework.

If someone offers you more privately than what you are asking on ebay, then I would guess that they are not aware that it is on offer for cheaper elsewhere; this could be construed by some to be unethical.

Perhaps there is more going on here than meets the eye, but it does seem that the good Doctor did not pull the auction after agreeing to a private sale, which is entirely his fault. I would never suggest to someone that their first ebay foray should be a high-ticket item, as there are a few tricks of the trade to be learnt. Maybe one of his friends should have told him about ebay "snipers", for starters....

As stated above, many people make their living through ebay, and with those kind of stakes the unwary are claimed quickly.

I hope they sort it out.

cheers

greg v.

From personal experience, ebay has been very limp when it comes to stuff like this. They have the dispute console set up to stop people from bidding and not completing the transaction, and to prevent outright fraud- payment and then no delivery of goods or services. From personal experience, ebay wants nothing to do with the more complex end of things. They want to be only a little-to-no-responsibility advertising board with some transaction easing software which you pay for in your fees.

I am very interested in what the court says, as I have my own opinion of how this works. It relates to another area of law I have had experience with- auction law from state to state. Ebay's shrugging of its responsibility to enforce transactions leaves the responsibility of this conduct to the individual buyers and sellers, and this is in most US states clearly defined in licensing procedures as practiced by auctioneers. Of course, you must be a licensed auctioneer to conduct an auction in most states, but law is law and it applies in these situations.

Here is my example (and a true one). I sold a high dollar item for a friend on ebay. The item reached the reserve established, but immediately after the auction, I received an email from an individual stating that he wanted to pay more for the item than the highest bid amount. His claim, which I accepted at face value, was that he was unable to place a bid at the last minute due to ebay's site being un-responsive. Since my friend's family needed the money in a bad way, I informed the high bidder of these things, and he did the same thing the high bidder in the airplane auction did- balked and was not happy.
Here's how I fixed the situation. I explained to the second bidder that he would have one chance to make an offer of a larger amount than the final price. He had to choose what he wanted to pay, and that was it. To the winning bidder on ebay, I explained to him to make one counter offer of more than the second bidder made, and he would own the item. I also gave him the option to refuse to complete the sale, and I would release him from any requirement to complete the sale.

I had much counsel from the winning bidder about how I could lose my ebay privileges, get a bad rep, etc. etc. I said that my personal choice would be to get the bad rep and lose my privileges over seeing my friend face financial ruin. The high bidder asked for references, and I gave three people to him. After talking to the three references, he agreed to my plan.

The second bidder made his offer. The winning bidder offered $1.00 more, and got his item, although it was $5000 more than he bid on ebay.

I tried to contact ebay regarding this transaction before it was completed, and they were completely un-responsive. I don't blame ebay for not getting into this- after all, it started as a software trial and became much bigger very fast. But at some point, situations like this need to be dissected in a court and decided. There are many questions- is ebay an auctioneer? Must they follow local law regarding an auction, and if so, where is that law based? Is it in Australia, or the corporate state of record for ebay, or in the state in which the bidder resides or from which he makes his/her bid?

I'm curious if anybody else has heard of court precedents regarding ebay transactioins?

Being a long time buyer/seller I'll add my .02. It's against the rules that everyone agrees to when you join to make outside offers, try to make deals, encourage sellers to close auctions early and to end an auction early (except for a few fair reasons ie incorrect listing). So I guess I live in a black and white world. If you don't follow through with the sale you've broken your word and agreement. Selling something out from under a winning bidder is flat out wrong has is getting a person to pay more after a auction closes (review last sentance). Has a buyer your bid is your word (review sentence before last). Your word is everything and if you break then what do ya have left???

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Don't touch my junk!!

If eBay is to be successful in big ticket items, they will have to follow the practices of firms such as DoveBid.

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Whazzat?

They deal exclusively in capital assets.

Probably a poor example, but I received one of their flyers in the morning mail.

EDIT: Link

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Commemorative Air Force
Experimental Aircraft Association
Warbirds of America

What are you waiting for? Join us!

Best way to contact me- email my last name @gmail.com

The key words here are "after the auction"; the auction was over, ergo the item was already sold.

Honestly, would you have done the same thing if it were a swap meet instead of an internet auction? Would the first buyer have let you get away with it? I think you can answer those yourself quite easily.


regards

greg v.

Interesting this , i also use ebay to sell items , for it to work there is a thing called trust , the items that i sell , sell to the highest bidder end of story , no second chances or higher offers will be entererd into after the auction , the item is SOLD , you list something of high value and it sells cheaply that is no ones fault but your own , build a bridge and get over it!!
As for straight out fraud on ebay , a friend of mine won a ME 109 instrument panel from a ebay seller in the uk complete with all instruments , sold for about $4K aust , paid for it and the freight , yep you guested it , no panel in the mail , help from ebay ha , they didnt give a toss , my mate did not give up made complaints to ebay local police and then uk police , which paid off as he got his money back only after the uk police were going to charge this person with internet fraud , took nearly a year but he got his money back.
The moral of the story is be carefull , if you do get "done over" on ebay dont give up fight it out , you may end up winning in the long run.

cheers dave

Just curious: is this the same 'Vin Thomas' who was one of the owners (along with Alan Lane and Geoff Milne) of Mustang A68-674 that was exported from Australia for restoration, became 'Dove of Peace' and eventually went to New Zealand?

You're exactly right Dave...ebay couldn't care less about dealing with fraud on their auction site. Try filing a complaint with them and see what happens...absolutely nothing!!!

When people get scammed on ebay they need to be proactive and take matters into their own hands (no...I'm not telling anyone to go hunt the S.O.B. down). I won an item on ebay which originated out of Canada. It wasn't a big-ticket item (about $120.00), but it was still money out of my own pocket. As to be expected, I sent payment and never received the item. The guy actually responded to few of my emails and kept saying the item was on it's way (it had already been 5 weeks). I finally had enough and contacted the local Canadian police and filed a formal complaint on this crook. They contacted this guy (in person) and told him he had better complete the deal or charges would be filed. The guy was really P.O.'d telling me that I over-reacted, but I ended up getting the item about a week after that!!!

John