Mobileciti Pty Ltd v Vodafone Pty Ltd & Anor [2011] NSWCA 52

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mobileciti Pty Ltd v Vodafone Pty Ltd & Anor [2011] NSWCA 52 Hearing dates: 17 February 2011 Decision date: 15 March 2011 Before: Giles JA at 1, McColl JA at 51, Handley AJA at 52 Decision: Appeal and cross-appeal dismissed. Mobileciti pay Vodafone's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - mobile phone service dealership terminable if dealer made "misleading misrepresentations" - whether advertisements placed by dealer misleadingly described service provider's mobile phone plan - on facts, dealer made misrepresentations - whether misrepresentations were material - on facts, were material to service provider and to potential customers - materiality not removed if dealer had system for correcting potential customers' misunderstandings - but evidence deficient as to a system Legislation Cited: Trade Practices Act 1974 (C'th), s 52 Cases Cited: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592; Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) CLR 304; Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) 205 ALR 402; Shepherd v Felt and Textiles Australia Ltd (1931) 45 CLR 359. Category: Principal judgment Parties: Mobileciti Pty Ltd - Appellant Vodafone Pty Ltd - First Respondent Look Mobile Distribution Pty Ltd - Second Respondent Representation: Counsel: M W Young & I Tam - Appellant D A McLure - Respondents Solicitors: Dixon Holmes du Pont - Appellant Henry Davis York - Respondents File Number(s): CA 2009/298502 Decision under appeal Citation: Mobileciti Pty Ltd v Vodafone Pty Ltd [2009] NSWSC 899 Date of Decision: 2009-09-25 00:00:00 Before: Hamilton AJ File Number(s): SC 6445/05