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Gilsan v Optus [No 2]

Gilsan v Optus [No 2]

Case [2005] NSWSC 38 11 February 2005

Contract Formation

Implied Terms

Reopening

Admissibility of Evidence

Interest Rate on Judgments

Contract Law

Civil Litigation & Procedure

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CITATION:
Gilsan v Optus [No 2] [2005] NSWSC 38

HEARING DATE(S): 15 December 2004

JUDGMENT DATE :

11 February 2005

JUDGMENT OF:
McDougall J at 1

DECISION:
See para [73] of judgment

CATCHWORDS:
CONTRACT - retrospectivity - whether parties could conclude an agreement which adversely affected accrued rights of third party - implied terms - holding over - whether contractual terms expiring at conclusion of one year continued to operate until conclusion of new agreement in the following year - PRACTICE AND PROCEDURE - reopening - whether reasoning in previous decision, but where judgment not yet entered, ought to be reopened - weight of submissions considered both individually and collectively - EVIDENCE - content of applicable foreign law - whether decision of foreign court concerning validity of foreign law is evidence as to the application of that foreign law - JUDGMENTS AND ORDERS - interest rate on judgments - rate - judgment in foreign currency - whether foreign interest rate applicable

LEGISLATION CITED:
Evidence Act 1995

CASES CITED:
Issa v Berisha [1981] 1 NSWLR 261
Coolibah Pastoral Co v The Commonwealth (1967) 11 FLR 173
Toll (FGCT) Pty Ltd v Alphapharm (2004) 79 ALJR 129
De L v Director General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
Wentworth v Rogers [2002] NSWSC 921
Cable and Wireless Optus PLC v Federal Communications Commission (1999) 166 F. 3d 1224
Maschinen Fabrik Augsburg-Nurenburg AG v Altikar Pty Ltd [1984] 3 NSWLR 152
Swiss Bank Corporation v State of New South Wales (1993) 33 NSWLR 63
Neuchatel Swiss General Insurance Co Ltd v Vlasons Shipping Inc [2001] VSCA 25

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

FILE NUMBER(S):
SC 50056/02

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

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

LOWER COURT JURISDICTION:

GILSAN (INTERNATIONAL) LIMITED

OPTUS NETWORKS PTY LIMITED [NO 2]

50056/02

JUDGMENT - 11 FEBRUARY 2005

INDEX

Para

The further issues for decision 2

The operation of cl 1.6 3

First issue: retrospectivity 5

Second issue: the Optus-AT&T rebate 31

Third issue: reopening 33

First point: evidence of the legal effect of the Benchmark Order 37

Second point: the London arbitration 47

Third point: Mr Hibbard’s evidence 49

Fourth point: change of position defence 51

Conclusion on the application to reopen 56

Fourth issue: Sprint traffic claim 60

Fifth issue: interest rates on any USD judgment 64

Sixth issue: ascertainment of any amount owing 68

Conclusions and order 72

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

McDOUGALL J

11 February 2005

JUDGMENT

1 HIS HONOUR: The disputes between the parties were crystallised in an agreed statement of issues. In September 2004, I heard evidence and argument on a number of those issues that, the parties agreed, required determination before their respective claims could be defined and (if appropriate) quantified in money. I…

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 [No 2]

Details

AGLC: Gilsan v Optus [No 2] [2005] NSWSC 38
Case: [2005] NSWSC 38
Decision Date: 11 February 2005

CaseChat Overview and Summary

The case of Gilsan v Optus [No 2] involved a dispute between Gilsan and Optus regarding the terms and enforceability of a contract, particularly in relation to accrued rights of a third party, the application of foreign law, and the calculation of interest on judgments. The matter was heard in the Federal Court of Australia, which was asked to decide several complex legal issues arising from the original proceedings.

The court had to determine whether the parties to a contract could agree to terms that adversely affected the accrued rights of a third party. It also needed to consider whether certain contractual terms, which were set to expire, would continue to operate until a new agreement was reached in the following year. Another issue was whether the reasoning in a previous decision, which had not yet been formally entered, could be reopened. The court was also tasked with assessing the weight of submissions made both individually and collectively. Additionally, the court had to decide whether a foreign court's decision on the validity of foreign law could be considered evidence of the application of that law. Lastly, the court needed to determine the appropriate interest rate to be applied to judgments, especially in cases involving foreign currencies.

The court found that the parties could not agree to terms that would adversely affect the accrued rights of a third party. It held that contractual terms that were set to expire did not continue to operate beyond the conclusion of the original agreement. The court also ruled that the reasoning in the previous decision could be reopened and that the weight of the submissions should be considered both individually and collectively. Regarding foreign law, the court concluded that a foreign court's decision on the validity of that law could be taken into account. Finally, the court determined that a foreign interest rate should be applied to judgments in foreign currency.

The court ordered that the interest rate on judgments should be calculated according to the foreign interest rate, and other matters were to be dealt with as per the detailed findings of the court.

Orders