Lime Telecom Pty Ltd v Powertel Limited [No.1] [2008] NSWSC 324

New South Wales Supreme Court

CITATION : Lime Telecom Pty Ltd v Powertel Limited [No.1] [2008] NSWSC 324

HEARING DATE(S) : 13 and 14 March 2008

JUDGMENT DATE : 13 March 2008

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 13 March 2008

DECISION : See paragraph [37] of the judgment

CATCHWORDS : CONTRACT – refusal to continue to provide services – whether repudiation – exclusion clauses – whether sufficient to exclude liability for damages for repudiation.

Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 H & E Van Der Sterren v Cibernetics (Holdings) Pty Limited (1970) 44 ALJR 157 CASES CITED : Kamil Export (Aust) Pty Ltd v NPL(Australia) Pty Ltd [1996] 1 VR 538 Peter Turnbull & Company Proprietary Limited v Mundus Trading Company (Australasia) Proprietary Limited (1954) 90 CLR 235 Sydney Corporation v West (1965) 114 CLR 481

PARTIES : Lime Telecom Pty Ltd ACN 107 797 213 (Plaintiff) Powertel Limited ACN 001 760 103 (Defendant)

FILE NUMBER(S) : SC 50098/07

COUNSEL : P Menadne (Plaintiff) CRC Newlinds SC / P Newton (Defendant)

Shields Lawyers (Plaintiff) SOLICITORS : Heidtman & Co Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

13 March 2008 (ex tempore – revised 14 March 2008)

50098/07 LIME TELECOM PTY LTD v POWERTEL LIMITED [No.1] JUDGMENT

1 HIS HONOUR: From about September 2004 until 29 May 2007 the defendant (PowerTel) supplied telecommunications services to the plaintiff (Lime). The plaintiff used those services in connection with its business; for today's purposes, neither the nature of the services nor the nature of the business are relevant save to say that termination of the provision of the services on 29 May 2007 caused a very substantial interruption to Lime's business. 2 It is common ground that although there were numerous contracts, each in relation to a particular service, at all material times the contracts were governed by the standard form of agreement for supply of services proffered by PowerTel to its customers including Lime. It will be necessary to return to some of those terms.