Zuvela & Anor v Geiger

[2007] WASCA 138

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Sale of Goods
2. › Implied conditions
3. › Merchantable quality
4. › Second-hand goods sold 'as traded'
5. › Whether implied condition of merchantable quality arose
6. › Whether goods of merchantable quality having regard to description, price and circumstances
7. › Sale of Goods Act 1895 (WA), s 14
8. › Fair Trading Act 1987 (WA), ss 33(2), 38(1)
1. Sale of Goods
2. › Implied conditions
3. › Fitness for purpose
4. › Whether buyer made known particular purpose to seller
5. › Whether unreasonable for buyer to rely on seller's skill or judgment
6. › Second-hand goods at low price
7. › Sale of Goods Act 1895 (WA), s 14(i)
8. › Fair Trading Act 1987 (WA), s 38(2)
1. Consumer Protection
2. › Misleading or deceptive conduct
3. › Silence as misleading conduct
4. › Partial disclosure of defects
5. › Whether silence following partial disclosure constituted misleading or deceptive conduct
6. › Fair Trading Act 1987 (WA), ss 10, 17
1. Damages
2. › Sale of goods
3. › Measure of damages for breach of warranty of quality
4. › Cost of repairs versus difference in value
5. › Betterment
6. › Whether repair costs appropriate measure
7. › Sale of Goods Act 1895 (WA), ss 52, 53

Quick Take

A second-hand machine sold 'as traded' at a low price may still attract implied conditions of merchantable quality and fitness for purpose where the buyer communicates the purpose to the seller and serious defects are not disclosed. The 'as traded' description and low price do not, without more, displace the implied conditions. The contractual measure of damages (repair costs) and the tortious measure (difference in value) for misleading or deceptive conduct are distinct, and the correct measure must be identified. Where repair costs are awarded, betterment may need to be considered.