Primus Telecommunications Pty Ltd v Kooee Communications Pty Ltd

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.