Liberty USA Pty Ltd v Telstra Corp Ltd & Anor [1998] FCA 1189

FEDERAL COURT OF AUSTRALIA

CONTRACT – Whether contractual right of first refusal over future stocks of phones – Whether intention to create legal relations – Terms – Whether employee of respondent had apparent or ostensible authority to commit respondent to right of first refusal – Whether breach of contract – Whether mitigation of loss TRADE PRACTICES – Whether letter to applicant constituted a representation of first refusal – Whether misleading and deceptive conduct – Whether alleged representation was authorised by the respondent – Calculation of damages UNCONSCIONABILITY – Estoppel – Whether failure to honour the alleged right of first refusal constituted unconscionable conduct Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Trade Practices Act 1974 s 51A, 52

LIBERTY USA PTY LTD v TELSTRA CORPORATION Ltd and Anor No VG 166 of 1994 JUDGE: NORTH J DATE: 22 SEPTEMBER 1998 PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 166 of 1994

BETWEEN LIBERTY USA PTY LTD (ACN 057 891 224)

Applicant

AND: TELSTRA CORPORATION LIMITED (ACN 051 776 556)

First Respondent

TELECOM TECHNOLOGIES PTY LTD (ACN 006 841 345)

Second Respondent

JUDGE(S): NORTH J

DATE OF ORDER: 22/09/98

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed. 2. Judgment for the first respondent in the sum of $51,074. 3. The applicant is restrained from selling any remaining TF200 phones purchased from Telstra to purchasers within Australia. 4. Costs reserved to a date to be fixed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA