APS Satellite Pty Ltd (formerly known as "SkyMesh Pty Ltd") v IPSTAR AUSTRALIA PTY LTD [2016] NSWSC 1898

Supreme Court New South Wales

Medium Neutral Citation: APS Satellite Pty Ltd (formerly known as "SkyMesh Pty Ltd") v IPSTAR AUSTRALIA PTY LTD [2016] NSWSC 1898 Hearing dates: 7-24 November 2016 Date of orders: 22 December 2016 Decision date: 22 December 2016 Jurisdiction: Equity Before: Rein J Decision: See [148] Catchwords: TRADE PRACTICES- Statute-Plaintiff sought recovery from the Defendant pursuant to s.74B, s.74D, and s.74H of the Trade Practices Act and s.54, s.55 and s.274 of the Australian Consumer Law of the cost of service calls and replacement parts for a satellite kit imported by the defendant - equipment said to be not reasonably fit for purpose, not of merchantable quality, not of acceptable quality. HELD: Plaintiff established that almost all of the subject items were not functioning for reasons inherent with the equipment and were therefore not fit for purpose, not of merchantable quality, not of acceptable quality; issue of high failure rate of equipment discussed; TRADE PRACTICES-Statute- Where Plaintiff claimed it was forced by reason of the defective equipment imported by defendant to engage additional support staff to deal with the high number of complaints that resulted from the defective goods resulting in a loss of money spent on wages HELD: The factual basis for the claim not established; also the indemnity provided for by s.74H is for cost or damage suffered by the consumer for which the intermediate seller has compensated the consumer and not the costs of the intermediate seller itself. Plaintiff's claim rejected. TRADE PRACTICES- Statute -Unconscionable conduct of supplier to internet service provider- Plaintiff claims that a price increase imposed on it by defendant, a satellite service provider, involved unconscionable conduct on the part of the defendant in breach of s.21 and s.22 of the Australian Consumer Law HELD: The Defendant had engaged in unconscionable conduct principally by requiring the Plaintiff to pay to it an amount equivalent to the defendant's assessment of what it would cost to meet the statutory indemnity imposed by s.74H and s.274 ACL, as a result of claims made by the Plaintiff on the defendant for defective goods. Legislation Cited: Australian Consumer Law (Schedule 2 to the Australian Competition and Consumer Act 2010 (Cth) Sale of Goods Act 1923 (NSW) Australian Securities and Investment Commission Act 2001 (Cth) Trade Practices Act 1974 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (no. 2) 2010 (Cth) Cases Cited: Ashford Shire Council v Dependable Motors Pty Ltd (1960) 104 CLR 139; [1961] AC 336 Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Australian Competition and Consumer Commission (ACCC) v ACN 117 372 915 Pty Ltd (in Liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368 Australian Competition and Consumer Commission (ACCC) v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253; [2000] FCA 1365. Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 Blomley v Ryan (1956) 99 CLR 362 Bristol Tramways & Carriage Company Ltd v Fiat Motors Ltd [1910] 2 KB 831 Canon Australia Pty Ltd v Patton [2007] NSWCA 246 Christopher Hill Ltd v Ashington Piggeries Ltd [1972] AC 441 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Emery v Johns Period Furniture [1989] SASC 1624 Fubilan Catering Services Ltd v Compass Group (Australia) Pty Ltd [2007] FCA 1205 Grant v Australian Knitting Mills (1935) 54 CLR 49; [1936] AC 85 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Lithgow City Council v Jackson (2011) 244 CLR 352 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; [2011] FCAFC 128 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, (2016) 333 ALR 569 Peterson v Merck Sharpe & Dohme (Australia) Pty Ltd (2010) 184 FCR 1; [2010] FCA 180 Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [2014] VSCA 338 PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446 Purkess v Crittenden (1965) 114 CLR 164 Rogers v Parish (Scarborough) Ltd [1987] QB 933 Thomas v Foreshore Marine Exhaust Systems Pty Ltd [2005] NSWCA 451 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Watts v Rake (1960) 108 CLR 158 Texts Cited: Benjamin's Sale of Goods (9th edition 2014 Sweet and Maxwell) Suttons' Sales and Consumer Law, (4th ed 1995, LBC Information Services) Category: Principal judgment Parties: APS Satellite Pty Ltd (formerly known as "SkyMesh Pty Ltd") (Plaintiff) IPSTAR AUSTRALIA PTY LTD (Defendant) Representation: Counsel: D.L Williams SC, R.D Glover (Plaintiff) S.R Donaldson SC, M. Sealey (Defendant) Solicitors: Thomson Geer (Plaintiff) Norton Rose Fulbright (Defendant) File Number(s): 2011/380786 Publication restriction: Nil