Gilsan v Optus

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.