Lime Telecom Pty Ltd v Powertel Limited [No.1]

[2008] NSWSC 324

CITATION:	Lime Telecom Pty Ltd v Powertel Limited [No.1] [2008] NSWSC 324
HEARING DATE(S):	13 and 14 March 2008
JUDGMENT DATE :	13 March 2008
JUDGMENT OF:	McDougall J at 1
EX TEMPORE JUDGMENT DATE:	13 March 2008
DECISION:	See paragraph [37] of the judgment
CATCHWORDS:	CONTRACT – refusal to continue to provide services – whether repudiation – exclusion clauses – whether sufficient to exclude liability for damages for repudiation.
CASES CITED:	Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 H & E Van Der Sterren v Cibernetics (Holdings) Pty Limited (1970) 44 ALJR 157 Kamil Export (Aust) Pty Ltd v NPL(Australia) Pty Ltd [1996] 1 VR 538 Peter Turnbull & Company Proprietary Limited v Mundus Trading Company (Australasia) Proprietary Limited (1954) 90 CLR 235 Sydney Corporation v West (1965) 114 CLR 481
PARTIES:	Lime Telecom Pty Ltd ACN 107 797 213 (Plaintiff) Powertel Limited ACN 001 760 103 (Defendant)
FILE NUMBER(S):	SC 50098/07
COUNSEL:	P Menadne (Plaintiff) CRC Newlinds SC / P Newton (Defendant)
SOLICITORS:	Shields Lawyers (Plaintiff) Heidtman & Co Lawyers (Defendant)

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

McDOUGALL J

13 March 2008 (ex tempore – revised 14 March 2008)

50098/07 LIME TELECOM PTY LTD v POWERTEL LIMITED [No.1]

JUDGMENT

1 HIS HONOUR: From about September 2004 until 29 May 2007 the defendant (PowerTel) supplied telecommunications services to the plaintiff (Lime). The plaintiff used those services in connection with its business; for today's purposes, neither the nature of the services nor the nature of the business are relevant save to say that termination of the provision of the services on 29 May 2007 caused a very substantial interruption to Lime's business.

2 It is common ground that although there were numerous contracts, each in relation to a particular service, at all material times the contracts were governed by the standard form of agreement for supply of services proffered by PowerTel to its customers including Lime. It will be necessary to return to some of those terms.

Factual background

3 PowerTel invoiced Lime monthly for services supplied in the preceding month. Each invoice stipulated, in accordance with the standard terms, that the previous month's charges stated in it were payable 30 days from the date of the invoice. It is clear that Lime rarely, if ever, complied with that payment obligation according to its terms.

4 On 1 May 2007, PowerTel sent Lime an invoice claiming a total of $73,667.09. That amount was made up of the current month's charges of $34,908.17 and the previous month's charges of $38,758.92. The invoice stated that the payment due date was 30 May 2007.

5 The previous month's charges had been included in an invoice dated 1 April 2007. Those charges were said to be payable by 30 April 2007. In keeping with what appears to have been Lime's general attitude towards its payment obligations, the April 2007 invoice also included an amount ($44,918.68) due under the previous month's invoice.

6 It…