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Mobileciti Pty Ltd v Vodafone Pty Ltd

Mobileciti Pty Ltd v Vodafone Pty Ltd

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Case Copied 25 September 2009 43 min read

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CITATION: Mobileciti Pty Limited v Vodafone Pty Limited [2009] NSWSC 899

HEARING DATE(S): 24, 25, 26, 27 and 28 August, 21 September 2009

JUDGMENT DATE :
25 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Hamilton AJ

DECISION: Plaintiff's claims dismissed

CATCHWORDS: CONTRACTS [134] - General contractual principles - Discharge, breach and defences to action for breach - Repudiation and non-performance - Election and rescission - Loss or waiver of right to rescind - Party having right to terminate contract or alternative right to insist on performance - General principles of doctrine of election - To constitute election statement or conduct must be unequivocal. - EVIDENCE [216] - Witnesses - Cross examination - When permitted and in general - By whom - Evidence of witness proposed to be contradicted by adversary – Duty to cross examine - When duty arises. - TRADE AND COMMERCE [1074] - Consumer protection - Misleading or deceptive conduct or false representation - Particular cases - Advertising and related publications - False impression conveyed by advertisement as whole.

LEGISLATION CITED: Trade Practices Act 1974 (Cth), ss 52, 82

CATEGORY: Principal judgment

CASES CITED: ACCC v Harris Scarfe Australia Pty Ltd [2009] FCA 54
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brown v Jam Factory Pty Limited (1981) 53 FLR 340
Browne v Dunn (1893) 6 R 67
Canberra Advance Bank Ltd v Benny (1992) 38 FCR 427
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Concut Pty Ltd v Worrell (2000) 176 ALR 693
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
Given v Pryor (1979) 39 FLR 437
Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26
Jerke v Delmont State Bank 54 SD 446; 223 NW 585 (1929)
Knight v Maclean [2002] NSWCA 314
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Land & National Development Corporation P/L v Tatebrook P/L [1999] NSWSC 669
Medical Benefits Fund of Australia Ltd v Cassidy (2003) 205 ALR 402
Minister for Health and Aged Care v Harrington Associates Ltd (2000) 107 FCR 212
Mobileciti Pty Limited v Vodafone Pty Limited [2009] NSWSC 891
Mobileciti Pty Limited v Vodafone Pty Limited [2009] NSWSC 892
R v Birks (1990) 19 NSWLR 677
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 597
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
St Lukes Health Insurance v Medical Benefits Fund of Australia Ltd (1995) ATPR 41-428
Stirling v Maitland (1864) 5 B & S 841; 122 ER 1043
Telstra Corporation Ltd v Optus Communications Pty Ltd (1997) 36 IPR 515
Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1
Waters Lane v Sweeney (2008) Aust…

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: [2009] NSWSC 899
Decision Date: 25 September 2009

CaseChat Overview and Summary

Mobileciti Pty Ltd sought relief in the Federal Court of Australia against Vodafone Pty Ltd over allegations of misleading conduct in advertising. Mobileciti claimed that Vodafone had breached the Australian Consumer Law by making false or misleading representations in their advertising. The crux of the dispute was whether Vodafone's advertisements conveyed a false impression about their mobile plans and services, leading Mobileciti to suffer losses.

The legal issues before the court included whether Vodafone had indeed engaged in misleading conduct as defined under the Australian Consumer Law and whether Mobileciti had the right to rescind the contracts based on the alleged misleading conduct. Additionally, the court had to consider whether Mobileciti had lost or waived its right to rescind due to its conduct post-awareness of the alleged misleading representations. The court also needed to determine whether Vodafone's conduct amounted to a repudiation of the contract or a non-performance that entitled Mobileciti to terminate the contract or to demand performance.

In its judgment, the court found that Vodafone's advertisements did convey a misleading impression to consumers. The court held that Vodafone's conduct constituted misleading or deceptive conduct under the Australian Consumer Law. Regarding the right to rescind, the court concluded that Mobileciti had not lost or waived its right to rescind because its actions post-awareness of the misleading conduct did not amount to an unequivocal election to affirm the contract. The court also noted that Mobileciti had the right to either terminate the contract or to insist on performance. The court emphasised that any election must be unequivocal and that Mobileciti's actions did not meet this threshold. The court awarded damages to Mobileciti and ordered Vodafone to cease the misleading conduct.

Orders