NSW Caselaw
New South Wales Court of Appeal
CITATION: KOOEE COMMUNICATIONS PTY LTD & ANOR v PRIMUS TELECOMMUNICATIONS PTY LTD [2008] NSWCA 5 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 31 October 2007
JUDGMENT DATE: 12 February 2008
JUDGMENT OF: Giles JA at 1; Tobias JA at 9; Basten JA at 11
(1) Appeal allowed.
(2) Cross-appeal dismissed.
DECISION: (3) Set aside the orders of Einstein J giving judgment in favour of Primus Telecommunications Pty Ltd in the amount of $2,647,832 and ordering that Kooee Communications Pty Ltd pay 75% of the costs of the proceedings in the Equity Division.
(4) Give judgment for Primus Telecommunications Pty Ltd in an amount of $1,391,040.
(5) Reserve the question of the costs of the trial and the appeal and direct the parties, if unable to agree as to those costs, to file any material involving offers of compromise and any written submissions on which they wish to rely within 14 days of the date of these orders.
CATCHWORDS: CONTRACT – construction–whether terms of contract accord with "commercial reality" - CONTRACT – construction – admissibility of extrinsic material
CATEGORY: Principal judgment
Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Fitzgerald v Masters (1956) 95 CLR 420 Gardiner v Agricultural and Rural Finance Pty Ltd [2007] NSWCA 235 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 CASES CITED: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; 210 CLR 181 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 76 ALJR 436 Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65 Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522
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