Case Note Gammasonics Institute for Medical Research Pty Ltd V Comrad Medical Systems Pty Ltd [2010] Nswsc 267

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CASE NOTE Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd [2010] NSWSC 267 New South Wales Supreme Court, heard by Fullerton J Gammasonic v Comrad[1] demonstrates the reluctance of the courts to interpret the Sale of Goods Act to include software downloads as a “good”, preferring to leave the matter up to statutory review. It primarily discusses whether a software package delivered by online download is effectively classed as “goods" for application of Sale of Goods Act[2] and outlines the progressive court decisions that have considered the question and have begun to recognize software attached to a medium, like a cd package as a “goods”. It also briefly addresses the applicability of…show more content…
The Sale of Goods Act 1923 The definition of goods provided in the Sale of goods Act 1923 (NSW) s5(1) is Goods include all chattels personal other than things in action and money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. It was submitted by Gammasonics that the software provided by Comrad was within the statutory definition of "goods" and they relied among other things on the implied condition as to quality or fitness in the act outlined in s19.[9] On appeal a request was made to consider whether there was a “Fresh Analysis of Authorities”[10] with a more modern approach to interpretation of the Act. Whether a software package delivered by online download is effectively classed as "goods" for application of Sale of Goods Act.[11] The case gives a thorough analysis and contains a comprehensive list of authorities that include case law and secondary sources which have reviewed this question. The key area of difference noted was that the software was delivered by download onto a server. This distinguished the case from that of others including Toby Constructions Products Pty Ltd v Computa Bar (Sales) Pty Ltd[12] where the software was held to be a ‘good’ because it comprised both software and hardware. Gammasonics relied on a passage from Advent Systems Ltd v Unisys Corp [13] as

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