Kyanar


You are aware that a sale is a pro-forma contract right? In which case my interpretation of s32.1(a) would indicate that the receiver takes liability for obligations under any sale contract entered into.

dejadeadnz:

There are many good arguments that militate against that view. Section 32(1)(a) states that a receiver is personally liable "on a contract entered into by the receiver in the exercise of any of the receiver’s powers" IF "the receiver has expressly confirmed the contract". It's an enormous stretch, in view of lines and lines of common law authority generally treating advertisements as invitations to treat only, to suggest that somehow in advertising and ultimately the staff of DSE processing/confirming a sale, the receivers have expressly confirmed each of those sale contracts. Express confirmation in that clause really has to mean positive, explicit, and particularised confirmation. 

In addition, unless you are in possession of an appellate court authority to the contrary, in view of simple concepts like separate corporate personality and commercial efficiency around not creating a chilling effect towards the right people accepting receivership appointments, the courts are likely to take a very dim view of an argument that would, in effect, potentially expose the receivers to unlimited CGA or Sales of Goods Act (amongst other statutes) claims for matters such as product failures as well. Your argument cannot logically somehow only hold the receivers liable to fulfil orders. Not to mention the fact that the Receiverships Act is clear in that the receivers are to primarily act in the best interest of the grantor/appointor, unsecured creditors, the company etc.

Regardless of the above, I go back to two of my original points: there is no evidence to support the OP's suggestion (at least he has provided none) that the receivers are personally guaranteeing "all transactions" (whatever that means) and, secondly, when it comes to complicated legal matters, it's best for non-lawyers to not spread speculative fires.

jamesrt:

Final nail in coffin as far as I'm concerned - there is no point buying anything from the shop if you're going to be stuck with un-working product if it fails.  Previous experience suggests that contacting manufacturers directly is usually a futile uphill battle.   YMMV, of course.

antonknee: Thanks dejadeadnz for your insight.

I am a corporate lawyer myself so I have a legal background (though like you not specifically in receiverships). Incidentally I work for a major supplier to Dick Smith.

All transactions authorised by the receivers (in our case these are primarily purchase orders etc) are backed by the receivers personally. I did extend that to pro forma contracts eg sales which in my opinion would be covered. I do agree with you that perhaps that is not 100% clear cut, so perhaps I should have qualified my original statement to that effect.

Certainly the CGA has provision for any manufacturer of imported to be liable with goods including private label. I'd say there is a god chance that somebody like NCP Group or Lacklands or Pudney & Lee are involved in the importation of Dick Smith branded goods. Certainly one of my other major retailers builds and imports private label product with NCP's assistance, and they are the importer for that purpose. I can't specifically speak to DS brand particularly especially as they have the Australian operations also, but I would hazard a guess there is more than just DSH themselves involved.

amiga500: Another Aussie site had the $390 million as the headline!

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Wonder if Ferrier Hodgson will provide a break down of how much of the $250 million is gift cards?    Surely a small small proportion?

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jpoc:

amiga500: Another Aussie site had the $390 million as the headline!

...

Wonder if Ferrier Hodgson will provide a break down of how much of the $250 million is gift cards?    Surely a small small proportion?

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The old piano tuners in Chicago chestnut eh?

Well, DSE has 393 stores. That's a hard fact.

We have to guess the rest.

There will be a lot of low value gift cards - below $100 - and a small number of larger ones - hundreds of dollars. So I will guess that $100 is a good quality estimate for the average value per card.

The substantially harder question concerns the number of outstanding cards per store. So we have to plug in an assortment of numbers and see what the results look like.

If there were ten gift cards per store then the total sum on cards would be $393,000. That is a tiny amount of money but also an unbelievably small number of cards per store.

One hundred cards per store sounds a lot more likely and that would give an outstanding sum of just $4M. That is still a tiny sum in the whole mess.

One thousand cards per store and you are up to $40M but that is just too much.

I have two reasons to say that.

First of all, most cards are redeemed within a very short time so for there to be 1000 cards outstanding per store then each store would probably have had to have sold 2000 cards in the month before the receivership. That assumes that half of the cards sold in that month would already have been redeemed. So each store would have been selling 70 cards a day, one every few minutes. That didn't happen.

The second reason is that, if they had pulled in $40M on gift cards, then they would have been awash with cash and would not have been in breach of banking covenants and the banks would not have called in the receivers.

To me, $4M looks like a fair enough answer.

happyone65: could some body please help me,im a 69yr old pensioner and on the 2nd of january i brought a laser blu-ray player bd3000 from dick smith in masterton and it needs fixing,i have been into the store and all they will do is give me a phone number to ring,what else can i do to get it fixed?

thanks for any reply's i get.

Dynamic:

happyone65: could some body please help me,im a 69yr old pensioner and on the 2nd of january i brought a laser blu-ray player bd3000 from dick smith in masterton and it needs fixing,i have been into the store and all they will do is give me a phone number to ring,what else can i do to get it fixed?

thanks for any reply's i get.

If you are confident with your technology, consider ringing the 0800 number.  The manufacturer may be able to talk you through a quick fix.

Dick Smith return policy:
https://www.dicksmith.co.nz/shopping-with-us/our-returns-policy-nz 
Section 2b says "You may bring your product to the sales/service counter at any of our stores to have your product assessed" "if you do not wish to contact the manufacturer".  You could print that out and highlight it when going back to the store.

See this Consumer web page and the Putting It Right section:  https://www.consumer.org.nz/articles/consumer-guarantees-act 

If you are a confident 69 year old, go back to Dick Smith and don't take no for an answer (politely but firmly of course).  If (like one of my parents) your confidence is not what it used to be, take a friend or relative who can help you stand your ground.  Make sure you have the receipt, or if this cannot be found, evidence of the purchase (e.g. bank statement showing the EFTPOS transaction).  Good luck!