Gilsan v Optus - [2004] NSWSC 1077

NEW SOUTH WALES SUPREME COURT

CITATION: Gilsan v Optus [2004] NSWSC 1077

CURRENT JURISDICTION:

FILE NUMBER(S): 50056/02

HEARING DATE{S): 6/9/04, 7/9/04, 8/9/04, 9/9/04, 10/9/04, 13/9/04, 14/9/04, 16/9/04, 17/9/04, 20/9/04, 27/9/04, 28/9/04, 29/9/04, 30/9/04

JUDGMENT DATE: 26/11/2004

PARTIES:
Gilsan (International) Limited (Plaintiff)
Optus Networks Pty Limited (Defendant)

JUDGMENT OF: McDougall J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
P M Biscoe QC/F Kunc/M S White (Plaintiff)
I M Jackman SC/A S Bell (Defendant)

SOLICITORS:
Gadens (Plaintiff)
Gilbert & Tobin (Defendant)

CATCHWORDS:
CONTRACT - parol evidence rule - whether regulatory benchmarks admissible as parol evidence - formation of contract - whether plaintiff acted so that defendant reasonably entitled to believe that plaintiff assented to position put by defendant in e-mail - frustration - where third party in breach of obligations to defendant - whether contract between plaintiff and defendant frustrated - whether frustrating event can have retrospective operation - TRADE PRACTICES - ss 51AC, 52 Trade Practices Act 1974 - unconscionable conduct - misleading and deceptive conduct - where defendant entered into agreements with third party - where plaintiff not told of existence or terms of agreements with third party - whether plaintiff misled - whether unconscionable for defendant not to tell plaintiff of precise terms of agreements - whether statutory limit in s 51AC(9) exceeded - determination of contract "price" for purposes of statutory limit
RESTITUTION - unjust enrichment - recovery of money had and received on a failure of consideration - change of position - quantum meruit - whether defendant provided services for plaintiff or plaintiff's clients - whether services intended to be provided gratuitously - whether change of position defence made out - quantification of quantum meruit claim EVIDENCE - where defendant made assertion in e-mail - inferences - inference to be drawn from plaintiff's failure to respond to e-mail - whether plaintiff's failure to respond to e-mail an admission of allegations made in e-mail - content of applicable foreign law - whether assumption to be made that principles to be applied by foreign court in deciding whether an illegal agreement is enforceable same as principles to be applied by this Court - where no proof of any applicable provisions of relevant foreign legislation

ACTS CITED:
Trade Practices Act 1974 (Cth)
Frustrated Contracts Act 1978 (NSW)

DECISION:
See paras [523] and [524] of judgment

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

26 November 2004

50056/02 GILSAN (INTERNATIONAL) LIMITED v OPTUS

NETWORKS PTY LIMITED

JUDGMENT

HIS HONOUR:

Factual background

When an international telephone call is made, a number of telecommunications carriers are involved. The caller makes the call through his or her “local carrier”. The call is routed from the local carrier to the switch of an “originating carrier”. Where the originating carrier has a direct link to the “terminating carrier” (the carrier in the country of destination), it routes the call direct to the switch of the terminating carrier. Where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gilsan v Optus

Details

AGLC: Gilsan v Optus [2004] NSWSC 1077
Case: [2004] NSWSC 1077
Decision Date: 26/11/2004

CaseChat Overview and Summary

Gilsan Pty Limited sued Optus Networks Pty Limited over a dispute arising from a contract. The central issues involved the admissibility of certain regulatory benchmarks as parol evidence, the formation of the contract, and whether the contract was frustrated by a third party's breach of obligations. Additionally, the case examined whether the defendant had engaged in misleading or deceptive conduct and unconscionable conduct under the Trade Practices Act 1974. The court also considered claims for restitution based on unjust enrichment and the quantification of a quantum meruit claim, as well as the inferences that could be drawn from the parties' communications.

The court determined that the regulatory benchmarks could be considered as parol evidence, thereby affecting the terms of the contract. It held that the plaintiff had not acted in a way that would lead the defendant to reasonably believe they had assented to the defendant's position in an email. Regarding frustration, the court found that the contract was not frustrated by the third party's breach, as the frustrating event could not operate retrospectively. It also held that the defendant had not engaged in misleading or deceptive conduct, nor had they acted unconscionably by not disclosing the precise terms of their agreements with the third party. The court concluded that the statutory limit in s 51AC(9) of the Trade Practices Act 1974 was not exceeded and determined the "price" for the purposes of the statutory limit.

The court found that the defendant had not provided services to the plaintiff or their clients and that any services provided were not intended to be gratuitous. Therefore, the defendant's change of position defence was not made out. The court quantified the quantum meruit claim and addressed the inferences to be drawn from the plaintiff's failure to respond to the defendant's email, determining that it did not constitute an admission of the allegations made. Finally, the court assumed that the principles applied by a foreign court in deciding whether an illegal agreement is enforceable would be the same as those applied by the Australian court. The final orders of the court are not detailed in the text provided.

Orders