Westsub Discounts Pty Ltd v Idaps Australia Ltd

Re: WESTSUB DISCOUNTS PTY. LTD.
And: IDAPS AUSTRALIA LIMITED
No. V G261 of 1986
FED No. 139
Trade Practices - Contract - Detinue

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.(1)

CATCHWORDS

Trade Practices - misleading conduct - contract in writing to instal computer system for video hire company - earlier oral representations about effectiveness of system - whether defect in software system - whether conduct misleading - claim for damages including payments made for system, other out-of-pocket expences, loss of profit opportunities, employment of unnecessary staff, executive salaries related to wasted time - measure of damages - whether sufficiently direct - whether foreseeable - whether failure to mitigate.

Contract - whether any collateral warranties agreed - effect of clauses excluding such warranties and limiting liability.

Detinue - cross-claim for refusal to return on demand computer lent for a fixed period - whether any legal basis for refusal.

Trade Practices Act 1974 ss 52 and 53

HEARING

MELBOURNE

#DATE 9:4:1990

Counsel for the Applicant: Mr P.J. O'Callaghan QC and

Mr D.M. Austin

Solicitors for the Applicant: McLindins

Counsel for the Respondent: Dr J.McL. Emmerson QC and

Mr T.J. Hancock

Solicitors for the Respondent: Abbott Tout Russell Kennedy

ORDER

1. There be judgment for the applicant on the claim in

the sum of $195,162.15.

2. There be judgment for the respondent/cross-claimant

on the cross-claim in the sum of $85,555.

3. The claim and cross-claim be set off against each

other and the respondent pay the applicant the sum of $109,607.15.

4. The respondent pay the applicant two thirds of the

applicant's costs of claim and cross-claim.

5. The applicant, within 28 days, arrange for the S140

computer and any related terminals or other related hardware in its possession to be available for collection by the respondent or its agent at a time and place to be agreed.

6. There be liberty to either party to apply to the

Court within 14 days concerning Order 5.

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

JUDGE1

This is an action for damages for breach of contract, breach of warranty, negligence and breaches of ss 52 and 53 of the Trade Practices Act 1974 ('the Act'). The claims arise out of an agreement by the respondent ('Idaps') to supply computer hardware, software and services to the applicant ('Westsub'), which was seeking a more efficient means of handling its video library business. This business involved supplying video cassettes on loan both to individual borrowers ('the retail trade') and to proprietors of convenience stores, such as milk bars and newsagencies, who would in turn lend them to the public ('the constore trade').

1. The substance of the applicant's allegations is that the respondent assured it that the system it was supplying would fulfil the applicant's requirements and, in the event, it did not and could not. As a result, the applicant claims to have wasted large sums of money and lost opportunities…