In the months of September and October 2004 Netspeed charged Finlayson's credit card the amount of: 1. $223.20 for additional data downloaded in August 2004; and 2. $539.60 for additional data downloaded in September 2004.

After correspondence between the parties these charges were reversed, but Netspeed claims to be entitled to be paid these amounts and the later incurred amounts to a total of $911.60. Netspeed has made an application to ACAT for payment of this amount plus interest: the application is based on contract. Netspeed asserts that the terms and conditions of their standard agreement entitle them to charge for excess downloads of data. The charges all relate to such downloads.

Ms Finlayson denies that she is liable to pay the amount claimed. She bases this denial on several factors:

1. The specific terms and conditions relied upon by Netspeed were not made available to her in writing; 2. All downloads in excess of the 400MB per month were made after midnight and before 7 am and thus not to be charged for;

1. The charges against her credit card had not been specifically authorised by her.

ACAT received evidence from both parties that the charges levied against the credit card and those invoiced as due to excess download had been disputed by Finlayson from the beginning. There was both oral and written correspondence between the parties. Ms Finlayson telephoned, visited and wrote to Netspeed. Her last letter on 15 August 2005 remains unanswered.

Mr Morris, manager of Netspeed, informed the Tribunal that Netspeed was currently processing hundreds of similar claims for debts that had remained uncollected for a period of years.

The matter falls to be determined upon the terms of the agreement between the parties. The evidence before ACAT is that the agreement was concluded in the offices of Netspeed on 20 August 2004, the contract was an oral one formed by conversation between Ms Finlayson and a Netspeed employee. No written agreement was produced or signed. While Mr Morris asserts that all his staff are trained to draw the client's attention to the standard form agreement, a copy of which was included with the application, there is no evidence to support his assertion.Further there was no evidence that the standard terms were referred to or drawn to Ms Finlayson's attention. ACAT invited the parties to make further submissions after the hearing of 9 November 2010. Netspeed has made further written submissions but has failed to address this issue. Netspeed has provided, in addition to the hard copy of their standard form agreement, copies of their webpage dated 1 November 2002 and 11 March 2004.

The information from 2002 is not helpful in this matter. The 2004 information refers to the Easy Plan 1 and states that the monthly fee is $19.95 and that the plan includes 400MB of data in peak times and unlimited downloads in off peak times. Nowhere does it identify the hours of peak and off peak times. Netspeed has also provided 2 emails dated 12 November 2002 and

24 February 2003. These emails pre-date the agreement between the parties and can have no relevance to the matter before the Tribunal.

Where the evidence of Mr Morris and Ms Finlayson were in conflict, ACAT preferred the evidence of Ms Finlayson. She had kept good records of the transactions and conversations and appeared to give full, frank and appropriate evidence. Mr Morris was not a party to the forming of the contract and his evidence could only be circumstantial.

ACAT finds that the contract formed was a simple contract which included few express or implied terms. It is not sufficient to refer customers to a web page for the terms and conditions of an agreement, especially such one sided terms as those contained in the hard copy provided by Netspeed. See Olley v Marlborough Court [1949]1 All ER 127 and Interfoto Picture Library v Stiletto Visual Programmes Ltd (1989) QB 433. There is now recognised a general duty for parties to a contract to act in good faith. This would include at least drawing vital terms to the attention to customers in the circumstances described by Ms Finlayson. If it was essential to log on after midnight and log off before 7 am in order for customers to access the 'free' data in off peak times, this should have been clearly communicated. It was not communicated and therefore was not at the time of entering into the contract a term of the contract.

ACAT finds that the contract was formed in the offices of Netspeed by conversation between Ms Finlayson and an employee of Netspeed. The contract contained the following express terms:

1. Netspeed would provide 400MB of data per month for an annual fee of $149.50 2. The fee was payable in advance;

1. Downloads of data between midnight and 7 am were not included in the 400MB and were 'free'.

12. If ACAT is not correct in this finding then it would be required to examine the written terms as provided by Netspeed. ACAT notes that the terms of the agreement provided by Netspeed with the application do not clearly set out the manner of accessing the off peak hours. The terms provide:

12.1 Off-Peak downloads are available to all NetSpeed customers on a connection plan that has an included off-peak downloaded allowance. Our off-peak period is between 12:00 midnight and 7am. The download limit specified on all plans that do not have an included off-peak download allowance in a total of the peak and off-peak usage amounts.

12.2 The time clock on our authentication server will be the sole clock source used to determine access times.

1. This accords with Ms Finlayson's understanding that data downloaded between midnight and 7 am is 'free' and there is no requirement set out in the agreement to log off before midnight and log on after midnight.

2. In a letter dated 2 May 2006, Netspeed refers Ms Finlayson to the terms and conditions of their agreement. They are referred to as terms stated on

23 September 2004, after the contract had been formed. They relevantly refer to terms 11.1 and 11.2 as setting out the requirement to log on after midnight and log off before 7 am. These terms are not included in the hard copy of the agreement provided by Netspeed with their application. Thus Netspeed has failed to establish that there was a written agreement or what its terms were.

3. Ms Finlayson has made a counter claim for loss of the use of money during the period September 2004, when the unauthorised and invalid charges were made to her credit card, and August 2005, when they were refunded. There is no appropriate evidence that the amounts remained unpaid on her credit card or that she paid the interest as calculated. However, damages for the loss of use of money are a recognised area of loss at common law. The Tribunal accepts that money charged to her credit card without lawful excuse represents a loss of the use of money.

APPLICANT: BYTECARD PTY LIMITED trading as NETSPEED

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )