Cuscal Ltd v First Data Resources Australia Ltd [2011] NSWSC 1625

Cuscal Ltd v First Data Resources Australia Ltd [2011] NSWSC 1625

The MSA provided for normal Services only during the five-year Term ending 31 December 2012, and neither clause 19 nor the definition of Termination Assistance plainly imposed an obligation to continue normal Services after that date. In the absence of an agreed TAP, First Data remained obliged to provide services to assist transition, but not to ensure continuity or smooth transition. Clause 19.3 distinguished Fees from Termination Assistance Costs, so Cuscal could not offset those costs against Fees. Reasonable Termination Assistance Costs were to be calculated using the hourly rates identified by Mr Wilson, subject to the reasonableness of time spent. Cuscal's delay in seeking to...

Jurisdiction
Australia
Judgment Date
30 December 2011
Procedural Posture
Contract Construction Proceedings in the Equity Division Commercial List / Principal Judgment on Disputed Questions of Construction of the EFT Master Services Agreement
Outcome
Declarations to be made substantially in the form sought by First Data, subject to hearing the parties on precise orders and costs.
Legal Topics
['construction of Contract' 'termination Assistance' 'continuing Services After Contract Expiry' 'contractual Time Stipulations' 'costs and Fees Under Services Agreement']
['contract Law' 'commercial Law'] ['construction of Contract' 'termination Assistance' 'continuing Services After Contract Expiry' 'contractual Time Stipulations' 'costs and Fees Under Services Agreement']

Case Brief

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Procedural Posture

Contract Construction Proceedings in the Equity Division Commercial List / Principal Judgment on Disputed Questions of Construction of the EFT Master Services Agreement

Legal Issues

  1. 1 ['Whether First Data was required to continue providing normal Services after 31 December 2012 for Cuscal customers not yet transitioned.' 'Whether First Data was contractually obliged to ensure continuity of supply and smooth transition when providing Termination Assistance.' 'Whether Cuscal could offset Termination Assistance Costs against fees for normal Services.' 'How Termination Assistance Costs were to be calculated.' 'Whether clause 19.4 of the MSA concerning a Termination Assistance Plan could now be enlivened by Cuscal.']

Ratio Decidendi

The MSA provided for normal Services only during the five-year Term ending 31 December 2012, and neither clause 19 nor the definition of Termination Assistance plainly imposed an obligation to continue normal Services after that date. In the absence of an agreed TAP, First Data remained obliged to provide services to assist transition, but not to ensure continuity or smooth transition. Clause 19.3 distinguished Fees from Termination Assistance Costs, so Cuscal could not offset those costs against Fees. Reasonable Termination Assistance Costs were to be calculated using the hourly rates identified by Mr Wilson, subject to the reasonableness of time spent. Cuscal's delay in seeking to...

Court Disposition

Declarations to be made substantially in the form sought by First Data, subject to hearing the parties on precise orders and costs.

Orders

  • ['First Data is not required to provide normal Services after 31 December 2012.' 'First Data is not contractually obliged to ensure continuity and smooth transition, but is required to provide assistance to Cuscal to transition customers to Cuscal.' 'First Data is required to provide information to Cuscal as to what...