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Topic # 210231 18-Mar-2017 17:10
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Thought we could do with a separate thread on this issue rather than having details buried in the other thread. I intend to claim so this I my initial thoughts. 

 

I have 2 Telecom (now Spark) supplied Tivos. One was sold to me for $300 (at a time the usual retail was around $750) and the other was “free“ provided I signed up for a further 12 months. So I am valuing this at $300 as well. 

 

I consider Telecom / Spark to be the Supplier. A supplier is a person who transfers ownership or the possession of the Tivo under a contract of sale, exchange, lease, hire, or hire purchase to me. Or transfers the ownership of the Tivo as the result of a gift from Spark to me. 

 

I reckon the Tivo must be durable (S7 (1) e of the Act) and given it is regarded a high end device I reckon a reasonable period of durability is 10 years. I also reckon Spark failed to tell me about the limited license which would see the product failing in October 2017 (S7 (1) i) and that this is something Spark knew at the time and it is something that should have been represented to me. 

 

It would seem to me that on 31 October my Tivos will fail. In that there will be no EPG so the Season Pass will no longer work, the Suggestions will no longer work and I will no longer be able to set up a programme to record from the Guide. Remote access will no longer work. I’m presuming the folders with recorded shows will also no longer work. I have no idea what will happen if I loose power and have to reboot. So the Tivo no longer works as it was described (S9) 

 

I anticipate my Tivos will fail so I intend asking Spark to remedy the problem within a reasonable time (S18 (2) a). Given the failure can’t be remedied (S18 (3) I think I shall be rejecting the Tivos. I shall hold onto the Tivos until they are collected by Spark as they are too big and expensive to post to them (S22 (2) a ii) 

 

Since the Tivos can’t be repaired I shall be asking for a refund of $300 per Tivo (S19 (1) c. 

 

I may also seek damages for the loss of enjoyment and functionality provided by the Tivo given no similar product is available (S18 (4). This will probably be an amount that brings me up to the retail price of whatever I get to replace the tivos 

 

So what are the problems with my plan?


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1394 posts

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  Reply # 1743444 18-Mar-2017 17:20
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Sounds like a plan, maybe this can be presented to Spark with a group of names attached, you can count me in, I have 3 tivo's, 2 from Telecom and one from Noel Lemming


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  Reply # 1743448 18-Mar-2017 17:33
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minimoke:

 

 

 

I reckon the Tivo must be durable (S7 (1) e of the Act) and given it is regarded a high end device I reckon a reasonable period of durability is 10 years. I also reckon Spark failed to tell me about the limited license which would see the product failing in October 2017 (S7 (1) i) and that this is something Spark knew at the time and it is something that should have been represented to me. 

 

 

 

 

When did Spark supply the Tivo devices to you? After the retirement announcement?





 
 
 
 




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Ultimate Geek
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  Reply # 1743461 18-Mar-2017 17:45
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freitasm:

 

minimoke:

 

 

 

I reckon the Tivo must be durable (S7 (1) e of the Act) and given it is regarded a high end device I reckon a reasonable period of durability is 10 years. I also reckon Spark failed to tell me about the limited license which would see the product failing in October 2017 (S7 (1) i) and that this is something Spark knew at the time and it is something that should have been represented to me. 

 

 

 

 

When did Spark supply the Tivo devices to you? After the retirement announcement?

 

 

Retirement announcement? I'm not sure the dates ( I have to check my accounts) but it was before they started getting sold in Noel Leeming.


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  Reply # 1743462 18-Mar-2017 17:47
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So that was a few years back. The service retirement was announced 2 March 2017. I don't think Spark had knowledge, years ago, that Tivo was planning to pull the plug on the 31st October 2017.





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  Reply # 1743465 18-Mar-2017 17:57
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there is nothing wrong with the device it works fine, there is just no service to go behind it

 

how much did you pay for the tivo service? not the tivo

 

 i dont see this going very far


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  Reply # 1743467 18-Mar-2017 18:02
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Good luck...Based upon two discussions I've had with people involved with CGA issues (one of whom is a lawyer heavily involved with such cases) they both see absolutely zero chance of such a claim succeeding if your claim is against Spark. Without saying any more that could identify people you've pretty much got no chance of succeeding with a CGA claim aginst them as you have no case. Spark certainly did not know about a closure date as you're claiming and Spark more importantly do NOT supply the Tivo service - they supplied you with Tivo hardware. The two are very different.

 

The issue is complicated by the fact you agreed to terms of use when you activated the Tivo device, one of which is that the Tivo service could be suspended at any time. As the product supplied by Spark is not fault or fall under any section of the CGA (the issue is between you and Hybrid Network Services Pty who have suspended the Tivo service) this will not be a CGA issue, but a matter between you and them. Such a claim against Hybrid does have merit, and a lot of happening in Australia right in terms of legal threats.

 

My advice to you is to seek legal advice if you feel you have case. This is going to cost you well in excess of the $600 you're claiming, but will certainly be an interesting case if you choose to proceed against Hybrid.

 

 


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  Reply # 1743481 18-Mar-2017 18:06
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minimoke:

 

freitasm:

 

minimoke:

 

 

 

I reckon the Tivo must be durable (S7 (1) e of the Act) and given it is regarded a high end device I reckon a reasonable period of durability is 10 years. I also reckon Spark failed to tell me about the limited license which would see the product failing in October 2017 (S7 (1) i) and that this is something Spark knew at the time and it is something that should have been represented to me. 

 

 

 

 

When did Spark supply the Tivo devices to you? After the retirement announcement?

 

 

Retirement announcement? I'm not sure the dates ( I have to check my accounts) but it was before they started getting sold in Noel Leeming.

 

 

The retirement date was announced in March this year. There was not any plan for a retirement date of the product when it was sold by Spark, or Noel Leeming.

 

Your claim is without merit - attempts using similar claims such as yours failed with the shutdown of the Telecom CDMA network, and will very likely deliver the exact same result now.

 

 


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  Reply # 1743484 18-Mar-2017 18:24
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Your chances are zero and look how much notice they are have given you

Linux



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  Reply # 1743487 18-Mar-2017 18:32
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sbiddle:

 

Good luck...Based upon two discussions I've had with people involved with CGA issues (one of whom is a lawyer heavily involved with such cases) they both see absolutely zero chance of such a claim succeeding if your claim is against Spark. Without saying any more that could identify people you've pretty much got no chance of succeeding with a CGA claim aginst them as you have no case. Spark certainly did not know about a closure date as you're claiming and Spark more importantly do NOT supply the Tivo service - they supplied you with Tivo hardware. The two are very different.

 

The issue is complicated by the fact you agreed to terms of use when you activated the Tivo device, one of which is that the Tivo service could be suspended at any time. As the product supplied by Spark is not fault or fall under any section of the CGA (the issue is between you and Hybrid Network Services Pty who have suspended the Tivo service) this will not be a CGA issue, but a matter between you and them. Such a claim against Hybrid does have merit, and a lot of happening in Australia right in terms of legal threats.

 

My advice to you is to seek legal advice if you feel you have case. This is going to cost you well in excess of the $600 you're claiming, but will certainly be an interesting case if you choose to proceed against Hybrid. 

 

 

Thanks - I'm sure it will be complicated which is why i thought a separate thread might be useful to thrash out the details. 

 

Perhaps Spark did no know about the closure of the service. But I reckon it was incumbent on them to ensure a service was gong to be available for as long as the hardware was available. 

 

I am not claiming for a failure of the service. I am claiming for a failure of the Tivo box and its features which I bought. I see it a bit like buying a car. Say I buy a toyota and the Bridgestone tyres fail. Do I go after Toyota or Bridgestone. I reckon it would be Toyota - or more sepcifically the car yard I bought the car off. 

 

The terms of Use (which I have no recollection of the detail) were presumably with the Tivo service. I am not claiming against them. It is with Spark. I dont recall a contract between myself and Hybrid. Certainly I paid no consideration that I am aware of. 

 

I woudl argue the product I purchased from Spark is at fault - it wont work. The technical issues behind that isnt my problem as a consumer - it is for the Supplier to take responsibility for and rectify. 

 

Cant be bothered with legal advice - I'm confident enough good ideas (and problems with the claim like you raise) will come through this forum. Just have to figure out a way around them. Its only a $300 Tivo. But worth a challenge anyway. 




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  Reply # 1743488 18-Mar-2017 18:34
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Linux: Your chances are zero and look how much notice they are have given you

Linux

 

I'm not sure that there is anything in the CGA that provides for a supplier giving notice as a way of avoiding their durability obligations at the time of supply - but I'l look into it.




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  Reply # 1743493 18-Mar-2017 18:37
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The retirement date was announced in March this year. There was not any plan for a retirement date of the product when it was sold by Spark, or Noel Leeming.

 

Your claim is without merit - attempts using similar claims such as yours failed with the shutdown of the Telecom CDMA network, and will very likely deliver the exact same result now.

 

 

 

Hmm - I like the CDMA example. I have no idea about that but will give it some thought in context with this issue. What was the expected life time of a CDMA phone back in the day? How long do we expect mobile phones tolast for these day - 4 years? How much notice did Telecm give for closing down the CDMA network?




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  Reply # 1743496 18-Mar-2017 18:41
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Jase2985:

 

there is nothing wrong with the device it works fine, there is just no service to go behind it

 

how much did you pay for the tivo service? not the tivo

 

 i dont see this going very far

 

 

On 1 November will the Tivo work in the same way it does today? I dont think so.

 

 

 

I paid nothing for the Tivo service. Presumably that was bundled up in the purchase price of the Tivo but of no interest to a consumer because I wasn't required to buy it. It not like buying a phone and then having to buy a sim card.


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  Reply # 1743500 18-Mar-2017 18:53
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in fact it will, it just needs a service to connect to to allow it to do that, thats whats going, so yes the tivo box will still work fine.

 

your issues is with the lack of service not the box being defective.

 

 if you cant recognise that you dont have any hope of going anywhere with this




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  Reply # 1743501 18-Mar-2017 18:54
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Your claim is without merit - attempts using similar claims such as yours failed with the shutdown of the Telecom CDMA network, and will very likely deliver the exact same result now.

 

 

 

Right, a quick google

 

"The CDMA closure was first announced in May 2009 when Telecom launched its new XT network" Did telecom do any deals to help switch from CDMA to XT - in which case that might have been the compensation for loss of service.

 

 

 

And then 1 August 2012 the network closed."A spokesman said yesterday the company stopped selling CDMA phones at Christmas 2009. It was prepared to refund any phone credit pre-paid customers had left on their phones."


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  Reply # 1743503 18-Mar-2017 18:54
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minimoke:

 

 

 

Thanks - I'm sure it will be complicated which is why i thought a separate thread might be useful to thrash out the details.

 

 

 

Perhaps Spark did no know about the closure of the service. But I reckon it was incumbent on them to ensure a service was gong to be available for as long as the hardware was available.

 

 

 

 

I'm sure somebody will correct me if I'm wrong but based on a comment I saw the other day the Tivo hardware hasn't been available for sale since late 2012. That's 4 1/2 years, and typical CGA life expectations for a similar such product (home appliance in general) is in the vicinity of 5 years. Your products are obviously well over 5 years old since they were supplied by Spark.

 

 

I am not claiming for a failure of the service. I am claiming for a failure of the Tivo box and its features which I bought. I see it a bit like buying a car. Say I buy a toyota and the Bridgestone tyres fail. Do I go after Toyota or Bridgestone. I reckon it would be Toyota - or more sepcifically the car yard I bought the car off.

 

The terms of Use (which I have no recollection of the detail) were presumably with the Tivo service. I am not claiming against them. It is with Spark. I dont recall a contract between myself and Hybrid. Certainly I paid no consideration that I am aware of.

 

 

 

I woudl argue the product I purchased from Spark is at fault - it wont work. The technical issues behind that isnt my problem as a consumer - it is for the Supplier to take responsibility for and rectify.

 

 

 

Cant be bothered with legal advice - I'm confident enough good ideas (and problems with the claim like you raise) will come through this forum. Just have to figure out a way around them. Its only a $300 Tivo. But worth a challenge anyway. 

 

 

I'm not sure what your claim is if you're claiming it's a failure of the box - which it clearly is not. Your box as sold to you is fully functioning. Your agreement with Telecom (here) makes it very clear they do not supply the Tivo service.

 

The Tivo Service is ending which is a product supplied by Hybrid. Your hardware as supplied by Telecom is still fully functioning.

 

 


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