Mobile Innovations Limited v Vodafone Pacific Limited & Ors [2003] NSWSC 166

New South Wales Supreme Court

CITATION : Mobile Innovations Limited v Vodafone Pacific Limited & Ors [2003] NSWSC 166 HEARING DATE(S) : 17/02/03, 18/02/03, 19/02/03, 21/02/03, 24/02/03, 25/02/03, 26/02/03, 27/02/03, 28/02/03, 3/03/03, 4/03/03, 5/03/03, 6/03/03, 7/03/03, 10/03/03, 11/03/03, 12/03/03, 13/03/03, 14/03/03 JUDGMENT DATE : 27 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Einstein J DECISION : Upon the proper construction of the ASP Vodafone was not entitled to put forward nil as the target level in respect of the number of connections of new subscribers. By setting a nil target or by refusing to determine a target Vodafone rendered it impossible for Mobile to perform its obligations under the ASP. Finding that the same decision may be reached by way of: (1) upholding the pleaded implied co-operation term obliging Vodafone to do whatever was necessary to be done on its part to enable Mobile to have the benefit of the ASP and to refrain from doing anything which would or which would be calculated to deprive Mobile of the benefit of the ASP but giving this term limited reach in terms of applicable content (2) upholding the pleaded implied terms that Vodafone would act in good faith and reasonably in exercising its powers under the ASP but giving this term limited reach in terms of applicable content. Other disparate cases dealt with. Parties to bring in short minutes of order.

CATCHWORDS : CONTRACT - Principles of construction - Inter- relationship with principles governing implication of terms - IMPLIED TERMS - Duty to co-operate - Duty to act in good faith - Duty to act reasonably - Whether duty of co-operation may be considered an implied legal duty discerned by a process of construction, a rule of law or an implied term - Principles governing implication of term in connection with the maintenance of a business - Principles governing exclusion of implied terms - CAUSATION AND DAMAGES - Difficulties of assessment - Hypotheticals - Lost Chance - Loss of benefit or detriment dependent upon the making or exercise of discretionary decisions - Doctrine of efficient breach - Vicissitudes - Contractual and other arrangements of parties carrying on business of providing mobile telecommunications services - [see extended catchwords within] LEGISLATION CITED : Supreme Court Act Telecommunications Act 1997 (Cth) Mobile Innovations Limited (Plaintiff) PARTIES : Vodafone Pacific Limited (First Defendant) Vodafone Network Pty Limited (Second Defendant) Vodafone Pty Limited (Third Defendant) FILE NUMBER(S) : SC 50123/01 COUNSEL : Mr D J Hammerschlag SC, Mr V F Kerr (Plaintiff) Mr T F Bathurst QC, Mr T D Castle (Defendants) SOLICITORS : Deacons (Plaintiff) Henry Davis York (Defendants)