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Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd

Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd

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Case Copied 12 February 2008 46 min read

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New South Wales

Court of Appeal

CITATION: KOOEE COMMUNICATIONS PTY LTD & ANOR v PRIMUS TELECOMMUNICATIONS PTY LTD [2008] NSWCA 5
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31 October 2007

JUDGMENT DATE:
12 February 2008

JUDGMENT OF: Giles JA at 1; Tobias JA at 9; Basten JA at 11

DECISION:
(1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Set aside the orders of Einstein J giving judgment in favour of Primus Telecommunications Pty Ltd in the amount of $2,647,832 and ordering that Kooee Communications Pty Ltd pay 75% of the costs of the proceedings in the Equity Division.
(4) Give judgment for Primus Telecommunications Pty Ltd in an amount of $1,391,040.
(5) Reserve the question of the costs of the trial and the appeal and direct the parties, if unable to agree as to those costs, to file any material involving offers of compromise and any written submissions on which they wish to rely within 14 days of the date of these orders.

CATCHWORDS: CONTRACT – construction–whether terms of contract accord with “commercial reality” - CONTRACT – construction – admissibility of extrinsic material

CATEGORY: Principal judgment

CASES CITED: Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Fitzgerald v Masters (1956) 95 CLR 420
Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451
Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114
Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 76 ALJR 436
Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65
Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522

TEXTS CITED: Lewison, The Interpretation of Contracts, 3rd ed, (2004) Sweet & Maxwell at s 7.15

PARTIES: Kooee Communications Pty Ltd – First Appellant/First Cross-Respondent
SP Telemedia Limited – Second Appellant/Second Cross-Respondent
Primus Telecommunications Pty Ltd – Respondent/Cross-Appellant

FILE NUMBER(S): CA 40278/07

COUNSEL: A J Meagher SC/J G Duncan – Appellants/Cross-Respondents
R Garrett QC/D Priestley – Respondent/Cross-Appellant

SOLICITORS: Aleco Vrisakis, Rylestone – Appellants/Cross-Respondents
Browne & Co, Melbourne – Respondent/Cross-Appellant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 50004/06

LOWER COURT JUDICIAL OFFICER: Einstein J

LOWER COURT DATE OF DECISION: 16 February 2007; 20 April 2007; 7 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 91; [2007] NSWSC 374; [2007] NSWSC 444

CA 40278/07
SC 50004/06

GILES JA
TOBIAS JA
BASTEN JA
12 February 2008

KOOEE COMMUNICATIONS PTY LTD & ANOR v PRIMUS TELECOMMUNICATIONS PTY LTD

Headnote

The First Appellant, Kooee Communications Pty Ltd…

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: [2008] NSWCA 5
Decision Date: 12 February 2008

CaseChat Overview and Summary

Kooee Communications Pty Ltd (Kooee) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning a dispute with Primus Telecommunications Pty Ltd (Primus). The core of the dispute involved the interpretation of certain contractual terms relating to the provision of telecommunications services.

The Court of Appeal was required to determine whether the terms of the contract, as construed by the primary judge, accorded with commercial reality. Additionally, the court considered the admissibility of extrinsic material in the construction of the contract.

Giles JA, with whom Tobias JA and Basten JA agreed, found that the primary judge had erred in their construction of the contract. His Honour held that the interpretation adopted by the primary judge did not reflect the commercial realities of the arrangement between the parties. The court applied established principles of contractual construction, emphasizing that the language of the contract should be given its ordinary and commercial meaning, and that extrinsic evidence is generally inadmissible to contradict or vary the plain meaning of a written contract, unless an exception applies. In this instance, the court determined that the extrinsic material sought to be relied upon was not admissible for the purpose of construing the contract.

The appeal was allowed, and the cross-appeal was dismissed.

Orders

Orders of the court

(1) Appeal allowed. (2) Cross-appeal dismissed.

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.

CITATION:	KOOEE COMMUNICATIONS PTY LTD & ANOR v PRIMUS TELECOMMUNICATIONS PTY LTD [2008] NSWCA 5 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	31 October 2007
JUDGMENT DATE:	12 February 2008
JUDGMENT OF:	Giles JA at 1; Tobias JA at 9; Basten JA at 11
DECISION:	(1) Appeal allowed. (2) Cross-appeal dismissed. (3) Set aside the orders of Einstein J giving judgment in favour of Primus Telecommunications Pty Ltd in the amount of $2,647,832 and ordering that Kooee Communications Pty Ltd pay 75% of the costs of the proceedings in the Equity Division. (4) Give judgment for Primus Telecommunications Pty Ltd in an amount of $1,391,040. (5) Reserve the question of the costs of the trial and the appeal and direct the parties, if unable to agree as to those costs, to file any material involving offers of compromise and any written submissions on which they wish to rely within 14 days of the date of these orders.

CATCHWORDS:	CONTRACT – construction–whether terms of contract accord with “commercial reality” - CONTRACT – construction – admissibility of extrinsic material
CATEGORY:	Principal judgment
CASES CITED:	Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Fitzgerald v Masters (1956) 95 CLR 420 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 76 ALJR 436 Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65 Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522
TEXTS CITED:	Lewison, The Interpretation of Contracts, 3rd ed, (2004) Sweet & Maxwell at s 7.15
PARTIES:	Kooee Communications Pty Ltd – First Appellant/First Cross-Respondent SP Telemedia Limited – Second Appellant/Second Cross-Respondent Primus Telecommunications Pty Ltd – Respondent/Cross-Appellant
FILE NUMBER(S):	CA 40278/07
COUNSEL:	A J Meagher SC/J G Duncan – Appellants/Cross-Respondents R Garrett QC/D Priestley – Respondent/Cross-Appellant
SOLICITORS:	Aleco Vrisakis, Rylestone – Appellants/Cross-Respondents Browne & Co, Melbourne – Respondent/Cross-Appellant

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 50004/06
LOWER COURT JUDICIAL OFFICER:	Einstein J
LOWER COURT DATE OF DECISION:	16 February 2007; 20 April 2007; 7 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 91; [2007] NSWSC 374; [2007] NSWSC 444