Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd - [2012] HCATrans 66

[2012] HCATrans 066

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M138 of 2011

B e t w e e n -
PRIMUS TELECOMMUNICATIONS PTY LTD (ACN 071 191 396)
Applicant
and
KOOEE COMMUNICATIONS PTY LTD (ACN 001 341 331)
Respondent
Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 2012, AT 10.28 AM

MR R.M. GARRATT, QC: If the Court please, I appear with my learned friend, MR D.A. PRIESTLEY, for the applicant. (instructed by Browne & Co Solicitors & Consultants)

MR N.C. HUTLEY, SC: If your Honours please, I appear with my learned friend, MR J.G. DUNCAN, for the respondent. (instructed by Aleco Vrisakis)

HAYNE J: Yes. Yes, Mr Garratt.

MR GARRATT: At trial there were two competing hypotheses in this case; either the DigiPlus offer by B Digital was sham and telephony services were not available to Kooee on a basis that gave Kooee 18 per cent of the gross revenue or the DigiPlus offer was genuine. In respect of the sham hypothesis, there was a fallback position; if the initial offer was genuine, supply on those terms ceased to be available by at least the end of November 2004. If the offer was genuine, there was no misleading conduct, no reliance and no loss. The trial judge found for hypothesis one. He said, “the true position was that B Digital was not at any time prepared to proceed with the offer” of supply on 18 per cent terms which was not capable of being executed.

HAYNE J: What paragraph is that?

MR GARRATT: That is at paragraph 48 and 49 of the judgment below at application book 18. Accordingly, he said, the offer had been “misleading and deceptive”. This conclusion necessarily entailed rejecting the evidence to the contrary of the only lay witness called by Kooee, its chief executive officer, Mr Simmons. In cross‑examination it was put to him the DigiPlus offer was not a genuine offer and that it was a contrivance, and the repetition of that evidence at trial to the Full Court is to be seen at application book 178.

HAYNE J: Just before you part from paragraph 49 of the trial judge, is the reasoning that is there displayed “terms on offer were not capable of being executed” therefore “not a genuine offer.” Is that what is being said?

MR GARRATT: No. We would say it encompasses more than that.

HAYNE J: How?

MR GARRATT: If one takes into account the earlier proposition in paragraph 48 that B Digital “was not prepared at any time to proceed with the offer”. So not only was it not capable of being executed, there was no intent or willingness to proceed with it. Mr Simmons’ evidence in relation to the sham offer was most unsatisfactory. He could not give a satisfactory account of Mr Kotzohambos’, the person he was dealing…

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.

Keep reading for free

Create a free CaseChat account to read Primus Telecommunications Pty Ltd v Kooee Communications Pty... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] HCATrans 66
Decision Date

CaseChat Overview and Summary

Primus Telecommunications Pty Ltd (Primus) sought to restrain Kooee Communications Pty Ltd (Kooee) from continuing to use certain telecommunications infrastructure. The dispute concerned the interpretation and application of a Deed of Access and Licence (the Deed) entered into between the parties, which governed Kooee's use of Primus's network. Primus alleged that Kooee had breached the terms of the Deed by failing to pay for services rendered and by continuing to use the network after its licence had expired. The matter came before the High Court of Australia on appeal from the Full Federal Court.

The High Court was required to determine whether Kooee had breached the Deed by failing to pay for services and by continuing to use Primus's network after the termination of the licence. Specifically, the Court had to consider the proper construction of clauses within the Deed relating to payment obligations, the consequences of non-payment, and the termination provisions. The central question was whether Kooee's continued use of the network constituted a trespass or a breach of contract, and what remedies were available to Primus.

In its reasoning, the High Court analysed the express terms of the Deed, applying principles of contractual interpretation. The Court found that the Deed clearly stipulated that Kooee's right to use the network was conditional upon payment for services. It held that Kooee's failure to make the required payments constituted a breach of a fundamental term of the Deed, which entitled Primus to terminate the agreement and seek damages. Furthermore, the Court determined that Kooee's continued use of the network after termination, without a valid licence, amounted to a trespass. The Court emphasised that the Deed did not grant Kooee an ongoing right to use the infrastructure in the absence of payment.

The High Court allowed the appeal, setting aside the orders of the Full Federal Court. It declared that Kooee had breached the Deed and was liable to Primus for damages, including an amount representing the value of the services used after the termination of the licence. The matter was remitted to the Federal Court for the assessment of those damages.

Orders