Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951

Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2005] NSWSC 951

The strike out application was dismissed because, although existing authority bound a first instance judge to treat conversion as confined to chattels, Telecom Vanuatu advanced plausible arguments that an appellate court might develop the tort to include intangible property. The same factual issues would substantially arise on the remaining contractual claims, so striking out the restitutionary claim would provide little practical advantage and could cause substantial additional cost if the claim were later held viable on appeal.

Jurisdiction
Australia
Judgment Date
23 September 2005
Procedural Posture
Commercial List Proceeding Concerning Contractual, Restitutionary and Conversion Claims Arising From Telecommunications Agreements / Defendant's Notice of Motion to Strike Out Paragraphs 17 to 24 of the Summons
Outcome
Defendant's notice of motion dismissed with costs.
Legal Topics
['strike Out Application' 'conversion of Intangible Property' 'money Had and Received' 'unjust Enrichment' 'termination Charges' 'telecommunications Number Ranges']
['practice and Procedure' 'torts' 'restitution' 'contract' 'telecommunications'] ['strike Out Application' 'conversion of Intangible Property' 'money Had and Received' 'unjust Enrichment' 'termination Charges' 'telecommunications Number Ranges']

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Procedural Posture

Commercial List Proceeding Concerning Contractual, Restitutionary and Conversion Claims Arising From Telecommunications Agreements / Defendant's Notice of Motion to Strike Out Paragraphs 17 to 24 of the Summons

Legal Issues

  1. 1 ['Whether paragraphs 17 to 24 of the Summons pleading restitutionary claims founded on conversion of intangible Vanuatu Number Ranges should be struck out.' 'Whether it was reasonably arguable, at least at appellate level, that the tort of conversion could extend to intangible property.' 'Whether striking out the impugned allegations would provide a practical advantage in the preparation or conduct of the trial.']

Ratio Decidendi

The strike out application was dismissed because, although existing authority bound a first instance judge to treat conversion as confined to chattels, Telecom Vanuatu advanced plausible arguments that an appellate court might develop the tort to include intangible property. The same factual issues would substantially arise on the remaining contractual claims, so striking out the restitutionary claim would provide little practical advantage and could cause substantial additional cost if the claim were later held viable on appeal.

Court Disposition

Defendant's notice of motion dismissed with costs.

Orders

  • ["Dismiss the defendant's notice of motion of 9 August 2005." "Defendant pay the plaintiff's costs of the notice of motion."]