Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2006] FCA 1118

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v LG Electronics

Australia Pty Ltd [2006] FCA 1118

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v LG ELECTRONICS AUSTRALIA PTY LTD ABN 98 064 531 264

WAD 419 of 2005

SIOPIS J

4 JULY 2006

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 419 OF 2005

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: LG ELECTRONICS AUSTRALIA PTY LTD ABN 98 064 531 264

Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 4 July 2006

WHERE MADE: PERTH

THE COURT ORDERS THAT: Declaration 1. The Respondent has contravened s.52 and s.53(g) of the Trade Practices Act 1974 by making the express statement in the user manuals for mobile telephones identified by model numbers U8110, U8120, U8180, U8330 and U8360 that: "2. WHAT THIS WARRANTY DOES NOT COVER: (7) This limited warranty is in lieu of all other warranties, expressed or implied in terms of marketability or fitness for a particular use. Specifically the company will accept no responsibility or liability for consequential, indirect, incidental and special loss or damage caused by or due to failure of operation or malfunction of the product, or arising from the use or inability to use the product" (a) and thereby representing that a consumer of a specified model of the mobile telephones has only the benefit of a voluntary warranty provided by the Respondent, whereas a consumer has the benefit of non-excludable conditions and warranties implied by law, including the Trade Practices Act 1974, as to fitness for purpose and merchantable quality; (b) and thereby further representing that an owner of a specified model of the mobile telephones has no right of action or remedy against the Respondent for consequential, indirect, incidental and/or special loss or damage at all, whereas an owner has non-excludable statutory rights of action and remedies (including for consequential, indirect, incidental and special loss and damage) against the Respondent if a mobile telephone is not fit for a particular purpose or is not of merchantable quality. 2. The Respondent has contravened s.52 and s.53(g) of the Trade Practices Act 1974 by making the express statement in user manuals for mobile telephones identified by model numbers DM150 and DM120 that: "2. WHAT THIS WARRANTY DOES NOT COVER: (6) This limited warranty is in lieu of all other warranties, express or implied either in fact or by operation of law, statutory or otherwise, including, but not limited to any implied warranty of marketability or fitness for a particular use" in the case of DM150; and "2. WHAT THIS WARRANTY DOES NOT COVER: (6) This limited warranty is in lieu of all other warranties, express or implied either in fact or by operation of law, statutory or [sic]" in the case of DM120, (a) and thereby representing that a consumer of the specified model of the mobile telephones has only the benefit of a voluntary warranty provided for by the Respondent, whereas a consumer has the benefit of non-excludable conditions and warranties implied by law, including the Trade Practices Act 1974, as to title, fitness for purpose, merchantable quality, correspondence with description and correspondence with sample; (b) and thereby further representing that an owner of a specified model of mobile telephone has no right of action or remedy against the Respondent, whereas an owner has the benefit of non-excludable conditions and warranties implied by law as to title, fitness for purpose, merchantable quality, correspondence with description and correspondence with sample; (c) and thereby further representing that an owner of a specified model of mobile telephone has no right of action or remedy against the Respondent, whereas an owner has non-excludable statutory rights of action and remedies (including for damages) against the Respondent if a mobile telephone is not fit for a particular purpose; does not correspond with the description of the same; is not of merchantable quality or does not correspond with a sample of the same. 3. The Respondent has contravened s.52 and s.53(g) of the Trade Practices Act 1974 by making the express statement in user manuals for mobile telephones identified by model numbers LGC-800W, B2100, C110, F1200, F2100, F2300, G1500, G5300, G5300i, G5400, G7020, G7050, G7100, L1100, T5100 that: "1. WHAT THIS WARRANTY COVERS: (1) The limited warranty for the product extends for ONE (1) year beginning on the date of purchase of the product".