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Ipstar Australia Pty Ltd v APS Satellite Pty Ltd

Ipstar Australia Pty Ltd v APS Satellite Pty Ltd

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Case Copied 14 February 2018 83 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15
Hearing dates: 29-31 August 2017
Date of orders: 14 February 2018
Decision date: 14 February 2018
Before: Bathurst CJ at [1]; Beazley P at [268]; Leeming JA at [269]
Decision:
(1) Grant the appellant leave to amend its notice of appeal in terms of the draft amended notice of appeal dated 30 August 2017.

(2) Order the appeal be dismissed.
(3) Order the appellant pay the respondent’s costs of the appeal.
Catchwords:
CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Australian Consumer Law – unconscionable conduct – whether conduct of an experienced commercial party in imposing a price increase on another experienced commercial party was in all the circumstances unconscionable
CIVIL PROCEDURE – Commercial List, Technology and Construction List – Procedure – whether reply to commercial list response forms part of pleadings – whether pleaded case encompassed claim for statutory warranty for defective equipment regardless of cause of defect
Legislation Cited: Australian Securities and Investment Commission Act 2001 (Cth)
Competition and Consumer Act 2010 (Cth)
Competition and Consumer Legislation Amendment Act 2011 (Cth)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: A v B1 (No 2) (2012) 271 FLR 122; [2012] WASC 383
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18
Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90
Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226
Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187
Canon Australian Pty Ltd v Patton (2007) 244 ALR 759; [2007] NSWCA 246
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75
Commonwealth Bank of Australia v Kojic (2016) 341 ALR 572; [2016] FCAFC 186
Dare v Pulham (1982) 148 CLR 658
Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] ATPR 41-703
Jenyns v Public Curator (Q) (1953) 90 CLR 113
Medtel Pty Ltd v Courtney (2003) 130 FCR 182; [2003] FCAFC 151
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28
PT Ltd v Spuds Surf Chatswood Ltd [2013] NSWCA 446
Re Baden's Deed Trusts (No 2) [1973] Ch 9
Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; [2014] HCA 15
Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49

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.

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Details

Case: [2018] NSWCA 15
Decision Date: 14 February 2018

CaseChat Overview and Summary

The appeal concerned a dispute between Ipstar Australia Pty Ltd (the appellant) and APS Satellite Pty Ltd (the respondent) regarding alleged unconscionable conduct under the Australian Consumer Law. The core of the dispute involved a price increase imposed by Ipstar on APS for satellite broadband services. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the conduct of Ipstar, an experienced commercial party, in imposing a price increase on APS, also an experienced commercial party, was unconscionable in all the circumstances. Additionally, the court considered procedural questions concerning whether a reply to a commercial list response formed part of the pleadings and whether the pleaded case encompassed a claim for a statutory warranty for defective equipment, irrespective of the defect's cause.

The Court of Appeal found that the conduct in question did not meet the threshold for unconscionability under the Australian Consumer Law. The court reasoned that both parties were experienced commercial entities capable of protecting their own interests, and the contractual arrangements between them did not give rise to the type of vulnerability or exploitation that the law aims to prevent. The court also determined that the procedural issues did not alter this conclusion.

Consequently, the Court of Appeal granted the appellant leave to amend its notice of appeal, but ultimately dismissed the appeal and ordered the appellant to pay the respondent's costs.

Orders

Orders of the court

(1) Grant the appellant leave to amend its notice of appeal in terms of the draft amended notice of appeal dated 30 August 2017.

(2) Order the appeal be dismissed.

(3) Order the appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15
Hearing dates:	29-31 August 2017
Date of orders:	14 February 2018
Decision date:	14 February 2018
Before:	Bathurst CJ at [1]; Beazley P at [268]; Leeming JA at [269]
Decision:	(1) Grant the appellant leave to amend its notice of appeal in terms of the draft amended notice of appeal dated 30 August 2017. (2) Order the appeal be dismissed. (3) Order the appellant pay the respondent’s costs of the appeal.
Catchwords:	CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Australian Consumer Law – unconscionable conduct – whether conduct of an experienced commercial party in imposing a price increase on another experienced commercial party was in all the circumstances unconscionable CIVIL PROCEDURE – Commercial List, Technology and Construction List – Procedure – whether reply to commercial list response forms part of pleadings – whether pleaded case encompassed claim for statutory warranty for defective equipment regardless of cause of defect
Legislation Cited:	Australian Securities and Investment Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Competition and Consumer Legislation Amendment Act 2011 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A v B1 (No 2) (2012) 271 FLR 122; [2012] WASC 383 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Attorney-General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Securities and Investments Commission v National Exchange Pty Ltd (2005) 148 FCR 132; [2005] FCAFC 226 Banque Commerciale SA en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187 Canon Australian Pty Ltd v Patton (2007) 244 ALR 759; [2007] NSWCA 246 Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75 Commonwealth Bank of Australia v Kojic (2016) 341 ALR 572; [2016] FCAFC 186 Dare v Pulham (1982) 148 CLR 658 Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] ATPR 41-703 Jenyns v Public Curator (Q) (1953) 90 CLR 113 Medtel Pty Ltd v Courtney (2003) 130 FCR 182; [2003] FCAFC 151 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 PT Ltd v Spuds Surf Chatswood Ltd [2013] NSWCA 446 Re Baden's Deed Trusts (No 2) [1973] Ch 9 Stewart v Atco Controls Pty Ltd (in liq) (2014) 252 CLR 307; [2014] HCA 15 Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49