Timberlake, M. v. Consultech Australia Pty Ltd [1987] FCA 135

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las (NOT FOR DISTRIBUTION)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No. VG 202 of 1986

GENERAL DIVISION

MARK TIMBERLAKE Applicant and CONSULTECH AUSTRALIA PTY LTD Respondent

MINUTES OF ORDER

COURT: Woodward J. DATE: 26 March 1987

PLACE: Melbourne

THE COURT ORDERS THAT:

There will be judgment for the applicant in the sum of $7074 with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

) ) VICTORIA DISTRICT REGISTRY ) No. VG 202 of 1986 ) )

GENERAL DIVISION

BETWEEN:

MARK TIMBERLAKE Applicant and CONSUILTECH AUSTRALIA PTY LTD Respondent

COURT: Woodward Jd.

DATE: 26 March 1987

PLACE: Melbourne

REASONS FOR JUDGMENT

This case arises from the sale of a personal computer, a Minder PC 8088, which was an acknowledged Taiwanese imitation of a well-known brand. The applicant alleges that, before he bought the computer from the respondent, several oral or implied representations were made to him which were misleading or

deceptive within the meaning of s.52 of the Trade Practices Act

1974.

As the trial developed, the only representations which

remained significant were: (i) that the computer would be serviced and maintained during its 3 months warranty period by Datronics Corporation Ltd

('Datronics') and

(ii) that the computer was capable of being serviced and

maintained, in the sense that spare parts and technical diagrams

were available for the purpose.

In the event, the respondent did not deny the making of the first representation in the course of discussion between the parties. It said that it did in fact have an arrangement with

Datronics for that company to do the relevant work.

The second representation was said by the applicant to have been implicit from the nature of the proposed transaction and the discussions about servicing. There was some evidence that a mini-computer could not be serviced properly without replacement parts and detailed circuit diagrams being available. The respondent did not agree that the diagrams were necessary for most repairs. However it accepted that diagrams were necessary for some more difficult repairs and claimed that adequate diagrams were available a few days after the applicant rescinded the contract. It agreed that spare parts were necessary for servicing, as it was usually better to replace a faulty computer board than to try to repair it. It said that spare parts were always available in this case by 'cannibalizing' other computers. These statements about the diagrams and spare parts are not entirely consistent with the full and frank letter written by the respondent to the applicant after he returned the computer. There it said,