Mobileciti Pty Ltd v Vodafone Pty Ltd - [2011] NSWCA 52

Court of Appeal

New South Wales

Case Title: Mobileciti Pty Ltd v Vodafone Pty Ltd & Anor

Medium Neutral Citation: [2011] NSWCA 52

Hearing Date(s): 17 February 2011

Decision Date: 15 March 2011

Jurisdiction:

Before:
Giles JA at 1, McColl JA at 51, Handley AJA at 52

Decision:
Appeal and cross-appeal dismissed. Mobileciti pay Vodafone's costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CONTRACT - mobile phone service dealership terminable if dealer made "misleading misrepresentations" - whether advertisements placed by dealer misleadingly described service provider's mobile phone plan - on facts, dealer made misrepresentations - whether misrepresentations were material - on facts, were material to service provider and to potential customers - materiality not removed if dealer had system for correcting potential customers' misunderstandings - but evidence deficient as to a system

Legislation Cited:
Trade Practices Act 1974 (C'th), s 52

Cases Cited:
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592;
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) CLR 304;
Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) 205 ALR 402;
Shepherd v Felt and Textiles Australia Ltd (1931) 45 CLR 359.

Texts Cited:

Category: Principal judgment

Parties:
Mobileciti Pty Ltd - Appellant
Vodafone Pty Ltd - First Respondent
Look Mobile Distribution Pty Ltd - Second Respondent

Representation

- Counsel:
Counsel:
M W Young & I Tam - Appellant
D A McLure - Respondents

- Solicitors:
Solicitors:
Dixon Holmes du Pont - Appellant
Henry Davis York - Respondents

File number(s): CA 2009/298502

Decision Under Appeal

- Court / Tribunal:

- Before: Hamilton AJ

- Date of Decision: 25 September 2009

- Citation: Mobileciti Pty Ltd v Vodafone Pty Ltd [2009] NSWSC 899

- Court File Number(s) SC 6445/05

Publication Restriction:

Judgment

GILES JA : The central issue on appeal was whether Mobileciti Pty Ltd ("Mobileciti"), a Vodafone dealer, made "material misrepresentations" regarding a Vodafone mobile phone service plan, the Super Cap plan, in advertisements placed in Chinese community newspapers. For the reasons which follow, the trial judge correctly held that it did. Other issues in the appeal and cross-appeal do not arise. The appeal and the cross-appeal should be dismissed, with an order for costs against Mobileciti.

The contractual background

In March 2000 Mobileciti became a dealer in Vodafone mobile phone services under a dealer agreement with Vodafone Pty Ltd ("Vodafone"). In April 2004 Vodafone made Look Mobile Pty Ltd ("Look Mobile") its distribution manager under a Distribution Manager Partner Agreement ("the DMP Agreement"), whereby Look Mobile was interposed between Vodafone and its dealers. This required rearrangement of…

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: [2011] NSWCA 52
Decision Date: 15 March 2011

CaseChat Overview and Summary

Mobileciti Pty Ltd (the dealer) and Vodafone Pty Ltd (the service provider) were parties to a dispute concerning the termination of a mobile phone service dealership agreement. The agreement stipulated that the dealership could be terminated if the dealer made "misleading misrepresentations." The core of the dispute involved advertisements placed by the dealer, which Vodafone alleged misleadingly described its mobile phone plan.

The Court of Appeal was required to determine whether the advertisements placed by Mobileciti constituted misleading misrepresentations regarding Vodafone's mobile phone plan. Further, the court had to consider whether any such misrepresentations were material, both to Vodafone as the service provider and to potential customers. The court also examined whether the existence of a system for correcting potential customers' misunderstandings could negate the materiality of misrepresentations.

The court found that the dealer had indeed made misrepresentations in its advertisements. It further determined that these misrepresentations were material, both to Vodafone and to prospective customers. The materiality of these misrepresentations was not negated by the mere possibility of a system for correcting misunderstandings, although the evidence presented regarding such a system was found to be deficient.

Consequently, the appeal and cross-appeal were dismissed, and Mobileciti was ordered to pay Vodafone's costs.

Orders

Orders of the court

Appeal and cross-appeal dismissed. Mobileciti pay Vodafone's costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Case Title:	Mobileciti Pty Ltd v Vodafone Pty Ltd & Anor
Medium Neutral Citation:	[2011] NSWCA 52
Hearing Date(s):	17 February 2011
Decision Date:	15 March 2011
Jurisdiction:
Before:	Giles JA at 1, McColl JA at 51, Handley AJA at 52
Decision:	Appeal and cross-appeal dismissed. Mobileciti pay Vodafone's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CONTRACT - mobile phone service dealership terminable if dealer made "misleading misrepresentations" - whether advertisements placed by dealer misleadingly described service provider's mobile phone plan - on facts, dealer made misrepresentations - whether misrepresentations were material - on facts, were material to service provider and to potential customers - materiality not removed if dealer had system for correcting potential customers' misunderstandings - but evidence deficient as to a system
Legislation Cited:	Trade Practices Act 1974 (C'th), s 52
Cases Cited:	Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) CLR 304; Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) 205 ALR 402; Shepherd v Felt and Textiles Australia Ltd (1931) 45 CLR 359.
Texts Cited:
Category:	Principal judgment
Parties:	Mobileciti Pty Ltd - Appellant Vodafone Pty Ltd - First Respondent Look Mobile Distribution Pty Ltd - Second Respondent
Representation
- Counsel:	Counsel: M W Young & I Tam - Appellant D A McLure - Respondents
- Solicitors:	Solicitors: Dixon Holmes du Pont - Appellant Henry Davis York - Respondents
File number(s):	CA 2009/298502
Decision Under Appeal
- Court / Tribunal:
- Before:	Hamilton AJ
- Date of Decision:	25 September 2009
- Citation:	Mobileciti Pty Ltd v Vodafone Pty Ltd [2009] NSWSC 899
- Court File Number(s)	SC 6445/05
Publication Restriction: