mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220
Outcome: cited
Subsection 66(2) of the TPA provides that goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to: (1) any description applied to them by the corporation; (2) the price received for them; and (3) all other relevant circumstances. In a case such as this, the 'relevant circumstances' are likely to include the nature of the defect, its intractability, and its effect on performance: see, e.g., Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, at 227-228 per Rougier J; Crowther v Shannon Motors Co [1975] 1 WLR 30 at 33; and Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 at 45-089 per Toohey J. Goods that are not of merchantable quality are unmerchantable: see Rogers v Parish (Scarborough) Ltd [1987] QB 933 (" Rogers v Parish ") at 946 per Woolf LJ and Courtney v Medtel Pty Ltd (2003)126 FCR 219 (" Medtel ") at 264 per Sackville J; appeal allowed in Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 but not on this point. Medtel concerned s 74D of the TPA, but its discussion of 'merchantable quality' is relevant in the present context.
Case: Crowther v Shannon Motors Co [1975] 1 WLR 30
Outcome: cited
Subsection 66(2) of the TPA provides that goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to: (1) any description applied to them by the corporation; (2) the price received for them; and (3) all other relevant circumstances. In a case such as this, the 'relevant circumstances' are likely to include the nature of the defect, its intractability, and its effect on performance: see, e.g., Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, at 227-228 per Rougier J; Crowther v Shannon Motors Co [1975] 1 WLR 30 at 33; and Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 at 45-089 per Toohey J. Goods that are not of merchantable quality are unmerchantable: see Rogers v Parish (Scarborough) Ltd [1987] QB 933 (" Rogers v Parish ") at 946 per Woolf LJ and Courtney v Medtel Pty Ltd (2003)126 FCR 219 (" Medtel ") at 264 per Sackville J; appeal allowed in Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 but not on this point. Medtel concerned s 74D of the TPA, but its discussion of 'merchantable quality' is relevant in the present context.
Case: Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441
Outcome: cited
Subsection 66(2) of the TPA provides that goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to: (1) any description applied to them by the corporation; (2) the price received for them; and (3) all other relevant circumstances. In a case such as this, the 'relevant circumstances' are likely to include the nature of the defect, its intractability, and its effect on performance: see, e.g., Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, at 227-228 per Rougier J; Crowther v Shannon Motors Co [1975] 1 WLR 30 at 33; and Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 at 45-089 per Toohey J. Goods that are not of merchantable quality are unmerchantable: see Rogers v Parish (Scarborough) Ltd [1987] QB 933 (" Rogers v Parish ") at 946 per Woolf LJ and Courtney v Medtel Pty Ltd (2003)126 FCR 219 (" Medtel ") at 264 per Sackville J; appeal allowed in Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 but not on this point. Medtel concerned s 74D of the TPA, but its discussion of 'merchantable quality' is relevant in the present context.
Case: Courtney v Medtel Pty Ltd (2003)126 FCR 219
Outcome: cited
Subsection 66(2) of the TPA provides that goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to: (1) any description applied to them by the corporation; (2) the price received for them; and (3) all other relevant circumstances. In a case such as this, the 'relevant circumstances' are likely to include the nature of the defect, its intractability, and its effect on performance: see, e.g., Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, at 227-228 per Rougier J; Crowther v Shannon Motors Co [1975] 1 WLR 30 at 33; and Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 at 45-089 per Toohey J. Goods that are not of merchantable quality are unmerchantable: see Rogers v Parish (Scarborough) Ltd [1987] QB 933 (" Rogers v Parish ") at 946 per Woolf LJ and Courtney v Medtel Pty Ltd (2003)126 FCR 219 (" Medtel ") at 264 per Sackville J; appeal allowed in Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 but not on this point. Medtel concerned s 74D of the TPA, but its discussion of 'merchantable quality' is relevant in the present context.
Case: Medtel Pty Ltd v Courtney (2003) 130 FCR 18
Outcome: followed
Subsection 66(2) of the TPA provides that goods are of merchantable quality if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect having regard to: (1) any description applied to them by the corporation; (2) the price received for them; and (3) all other relevant circumstances. In a case such as this, the 'relevant circumstances' are likely to include the nature of the defect, its intractability, and its effect on performance: see, e.g., Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220, at 227-228 per Rougier J; Crowther v Shannon Motors Co [1975] 1 WLR 30 at 33; and Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 at 45-089 per Toohey J. Goods that are not of merchantable quality are unmerchantable: see Rogers v Parish (Scarborough) Ltd [1987] QB 933 (" Rogers v Parish ") at 946 per Woolf LJ and Courtney v Medtel Pty Ltd (2003)126 FCR 219 (" Medtel ") at 264 per Sackville J; appeal allowed in Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 but not on this point. Medtel concerned s 74D of the TPA, but its discussion of 'merchantable quality' is relevant in the present context. 34 The contentious issue was whether or not the truck was fit for this purpose "as is reasonable to expect". In Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099 ; (2000) 102 FCR 307 at 445, Lindgren J (with whom Lee J on this point agreed) held that the words "as it is reasonable to expect" in s 74D are to be considered from the perspective of a reasonable consumer placed in the position of the actual consumer. Put another way, these words require the Court to consider what is objectively reasonable to expect at the time of supply to the consumer: see Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 , at 205 per Branson J, with whom Jacobson J agreed, and 199 [43] per Moore J. This assessment is to be undertaken in light of the information concerning the goods that is available at the time of trial: see 206 per Branson J.
Case: Cavalier Marketing (Australia) Pty Ltd v Rasell (1990) 96 ALR 375
Outcome: cited
Thus, where s 71(1) is invoked, the Court must determine: &#8226; the purpose or purposes for which goods of the relevant kind are commonly bought; and &#8226; whether the goods supplied are as fit for the purpose or purposes so identified as is reasonable to expect, having regard to the factors and circumstances listed. These issues call for an objective assessment. The focus of the first is the purpose or purposes for which the goods are "commonly bought" as opposed to the particular consumer's subjective purpose. Further, to quote Cooper J in Cavalier Marketing (Australia) Pty Ltd v Rasell (1990) 96 ALR 375 (" Rasell ") at 400, s 71(1) "requires that all normal purposes for which goods are commonly bought be brought into consideration. Fitness is to be tested against each of those purposes and none are to be excluded".
Case: Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099 ; (2000) 102 FCR 307
Outcome: followed
The contentious issue was whether or not the truck was fit for this purpose "as is reasonable to expect". In Graham Barclay Oysters Pty Ltd v Ryan [2000] FCA 1099 ; (2000) 102 FCR 307 at 445, Lindgren J (with whom Lee J on this point agreed) held that the words "as it is reasonable to expect" in s 74D are to be considered from the perspective of a reasonable consumer placed in the position of the actual consumer. Put another way, these words require the Court to consider what is objectively reasonable to expect at the time of supply to the consumer: see Medtel Pty Ltd v Courtney [2003] FCAFC 151 ; (2003) 130 FCR 182 , at 205 per Branson J, with whom Jacobson J agreed, and 199 [43] per Moore J. This assessment is to be undertaken in light of the information concerning the goods that is available at the time of trial: see 206 per Branson J.
Case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191
Outcome: cited
The application of s 52 is not restricted to conduct that is intended to mislead or deceive: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 (' Puxu ') at 197 per Gibbs CJ; and Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228 per Stephen J. The conduct complained of must be viewed as a whole: see, e.g., Puxu at 199 per Gibbs CJ.
Case: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 
Outcome: cited
The application of s 52 is not restricted to conduct that is intended to mislead or deceive: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 (' Puxu ') at 197 per Gibbs CJ; and Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 228 per Stephen J. The conduct complained of must be viewed as a whole: see, e.g., Puxu at 199 per Gibbs CJ.
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
In order to make out their case under s 52 of the TPA, the applicants need to establish that: (1) the conduct of which they complained occurred; (2) viewed objectively, the conduct was misleading or deceptive; and (3) they relied on Mack's conduct in the sense that it operated as an inducement for them to enter into arrangements for the acquisition of the truck. In order to be compensated for any loss and damage under s 82(1) of the TPA, they also need to establish a causal connection between this conduct and the loss for which they seek compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ and Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 469-470 per Gleeson CJ, 480 per Gaudron J, 489 per McHugh J and 509 per Hayne J. 270 In order to be compensated for any loss and damage under s 82(1) of the TPA in respect of a claim under s 52 of the TPA, the applicants needed to establish a causal connection between the respondent's conduct (here, the alleged misrepresentation) and the loss for which they sought compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ and Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 469-470 per Gleeson CJ, 480 per Gaudron J, 489 per McHugh J and 509 per Hayne J.
Case: Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459
Outcome: cited
In order to make out their case under s 52 of the TPA, the applicants need to establish that: (1) the conduct of which they complained occurred; (2) viewed objectively, the conduct was misleading or deceptive; and (3) they relied on Mack's conduct in the sense that it operated as an inducement for them to enter into arrangements for the acquisition of the truck. In order to be compensated for any loss and damage under s 82(1) of the TPA, they also need to establish a causal connection between this conduct and the loss for which they seek compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ and Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 469-470 per Gleeson CJ, 480 per Gaudron J, 489 per McHugh J and 509 per Hayne J. 270 In order to be compensated for any loss and damage under s 82(1) of the TPA in respect of a claim under s 52 of the TPA, the applicants needed to establish a causal connection between the respondent's conduct (here, the alleged misrepresentation) and the loss for which they sought compensation: see, e.g., Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525-526 per Mason CJ, Dawson, Gaudron and McHugh JJ and Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 469-470 per Gleeson CJ, 480 per Gaudron J, 489 per McHugh J and 509 per Hayne J.
Case: Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543
Outcome: cited
Where a corporation makes a representation with respect to a future matter, and the corporation does not have reasonable grounds for making the representation, s 51A(1) of the TPA deems the representation to be misleading for the purposes of s 52 ; and s 51A(2) deems a corporation not to have reasonable grounds unless it adduces evidence to the contrary. See Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552 per Hill J and Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 per Goldberg J. Applicants who rely on s 51A do not, therefore, have to establish as part of a cause of action under s 52 of the TPA that the respondent did not have reasonable grounds for making the representation.
Case: Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179
Outcome: cited
Where a corporation makes a representation with respect to a future matter, and the corporation does not have reasonable grounds for making the representation, s 51A(1) of the TPA deems the representation to be misleading for the purposes of s 52 ; and s 51A(2) deems a corporation not to have reasonable grounds unless it adduces evidence to the contrary. See Ting v Blanche [1993] FCA 524 ; (1993) 118 ALR 543 at 552 per Hill J and Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 at 54,432 per Goldberg J. Applicants who rely on s 51A do not, therefore, have to establish as part of a cause of action under s 52 of the TPA that the respondent did not have reasonable grounds for making the representation.
Case: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633
Outcome: cited
The applicants have not pleaded the facts upon which their s 52 claim would depend with the care and clarity that is called for in such a pleading: compare Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 and Banque Commerciale S A v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J. What the applicants have done is pick up and rely on their pleading as regards s 71 of the TPA as part of the pleading of a claim based on s 52 of the TPA. This course has left the scope of their s 52 claim a matter for guess work. As I have said, it was a claim scarcely mentioned at trial and all but abandoned in closing submissions, when counsel for the applicants conceded that the s 52 claim added nothing in substance to the s 71 claim. In these circumstances, it is plain enough that the claim was fundamentally flawed at the outset of the trial and remained so. It would be unfair to require Mack to guess at what it meant and therefore how it might be answered. In so far as the applicants sought to retain any part of their s 52 claim, it must fail.
Case: Banque Commerciale S A v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279
Outcome: cited
The applicants have not pleaded the facts upon which their s 52 claim would depend with the care and clarity that is called for in such a pleading: compare Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 and Banque Commerciale S A v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286 per Mason CJ and Gaudron J. What the applicants have done is pick up and rely on their pleading as regards s 71 of the TPA as part of the pleading of a claim based on s 52 of the TPA. This course has left the scope of their s 52 claim a matter for guess work. As I have said, it was a claim scarcely mentioned at trial and all but abandoned in closing submissions, when counsel for the applicants conceded that the s 52 claim added nothing in substance to the s 71 claim. In these circumstances, it is plain enough that the claim was fundamentally flawed at the outset of the trial and remained so. It would be unfair to require Mack to guess at what it meant and therefore how it might be answered. In so far as the applicants sought to retain any part of their s 52 claim, it must fail.
Case: General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164
Outcome: cited
Further, although it scarcely matters, I agree with Mack's submission that Mr Kumnick's statement to the effect that driving the truck was like driving a car was in the nature of commendatory puffery and not a representation of an actionable kind. Whether representations made in the course of negotiations such as those for sale are actionable or merely in the nature of puffery depends on the particular facts, considered "in the light of the ordinary incidents and character of commercial behaviour": see General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 , at 178 per Davies and Einfeld JJ; Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 234-235 per Fisher J; and Sanders v Glev Franchises Pty Ltd [2002] FCA 1332 at [270] - [274] per Kenny J.
Case: Pappas v Soulac Pty Ltd (1983) 50 ALR 231
Outcome: cited
Further, although it scarcely matters, I agree with Mack's submission that Mr Kumnick's statement to the effect that driving the truck was like driving a car was in the nature of commendatory puffery and not a representation of an actionable kind. Whether representations made in the course of negotiations such as those for sale are actionable or merely in the nature of puffery depends on the particular facts, considered "in the light of the ordinary incidents and character of commercial behaviour": see General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 , at 178 per Davies and Einfeld JJ; Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 234-235 per Fisher J; and Sanders v Glev Franchises Pty Ltd [2002] FCA 1332 at [270] - [274] per Kenny J. 52 In Pappas v Soulac (1983) 50 ALR 231 , Fisher J held that a number of the statements made by the vendor's agent (a Mr Spencer) to the purchasers of a shopping centre were of this kind. His Honour said, at 234-235: It is important to appreciate that many of the statements alleged or admittedly made by Mr Spencer were wholly or in part statements of opinion, not capable of being objectively proved to be true or false. They were also essentially the type of introductory comments, in the nature of puffery, made at the start of negotiations for the purpose of attracting the interest of a possible purchaser. As such they became irrelevant or of little, if any significance when detailed information is subsequently given a fortiori, to a potential purchaser with commercial experience. To the extent that they are essentially puffery, it is proper to be reluctant to elevate them to the status of potentially misleading conduct. His Honour held, at 238, that a statement by Mr Spencer that the shopping centre was a good investment was "the type of puffing which would normally fall from a selling agent and which was incapable of being proved to be correct or incorrect". See also Hanave Pty Ltd v LFOT Pty Ltd [1998] FCA 1051 (31 August 1998) per Moore J.
Case: Sanders v Glev Franchises Pty Ltd [2002] FCA 1332
Outcome: cited
Further, although it scarcely matters, I agree with Mack's submission that Mr Kumnick's statement to the effect that driving the truck was like driving a car was in the nature of commendatory puffery and not a representation of an actionable kind. Whether representations made in the course of negotiations such as those for sale are actionable or merely in the nature of puffery depends on the particular facts, considered "in the light of the ordinary incidents and character of commercial behaviour": see General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 , at 178 per Davies and Einfeld JJ; Pappas v Soulac Pty Ltd (1983) 50 ALR 231 at 234-235 per Fisher J; and Sanders v Glev Franchises Pty Ltd [2002] FCA 1332 at [270] - [274] per Kenny J.
Case: Hanave Pty Ltd v LFOT Pty Ltd [1998] FCA 1051
Outcome: cited
In Pappas v Soulac (1983) 50 ALR 231 , Fisher J held that a number of the statements made by the vendor's agent (a Mr Spencer) to the purchasers of a shopping centre were of this kind. His Honour said, at 234-235: It is important to appreciate that many of the statements alleged or admittedly made by Mr Spencer were wholly or in part statements of opinion, not capable of being objectively proved to be true or false. They were also essentially the type of introductory comments, in the nature of puffery, made at the start of negotiations for the purpose of attracting the interest of a possible purchaser. As such they became irrelevant or of little, if any significance when detailed information is subsequently given a fortiori, to a potential purchaser with commercial experience. To the extent that they are essentially puffery, it is proper to be reluctant to elevate them to the status of potentially misleading conduct. His Honour held, at 238, that a statement by Mr Spencer that the shopping centre was a good investment was "the type of puffing which would normally fall from a selling agent and which was incapable of being proved to be correct or incorrect". See also Hanave Pty Ltd v LFOT Pty Ltd [1998] FCA 1051 (31 August 1998) per Moore J.