Linkara Proprietary Ltd ATF the Karathanassis Family Trust v Telstra Corporation Ltd

Introduction

1. From 2008, the defendant ('Telstra') agreed to supply telecommunications services to the plaintiff (Linkara). A new agreement was entered into (in materially similar terms) in November 2011. Linkara is a trustee company of the Karathanassis Family Trust and operates at premises located at Unit 3, 91 Frederick Street, Merewether. Mr Lindsay Karathanassis is the director of Linkara. He says that there are various related entities under the Linkara 'umbrella'. Mr Karathanassis uses Linkara as a vehicle for the supply of services, including the sale of large businesses, but also the supply of accounting and auditing services. He also said that the problems from the supply of services in 2008 which led to the entry of a renegotiated agreement in 2011.
2. What Telstra agreed to supply to Linkara was an ISDN service. An ISDN service was to be configured as a telephone cluster system across four lines with a 'group directory number' (GDN) configuration. This allowed calls to be cycled across these lines in a rotary sequence; allowing for more than one caller to be directed through one of the four channels, up to a maximum of four calls (incoming or outgoing) at any one time. Linkara also advertised for use of a '1300' number and when anyone called that particular number, the call was routed to the GDN. The GDN for the service was (02) 4963 7466 and the facility included four separate numbers. These were described as follows: (1) Prime 1 - (02) 4963 7580; (2) Auxiliary 1 - (02) 4963 1123; (3) Prime 2 - (02) 4963 6240; (4) Auxiliary 2 - (02) 4963 1138.
3. Telstra admits that it was in breach of its contract when, in the period from 8 December 2008 to 2 November 2016, the ISDN group hunt feature was incorrectly configured. The problem was that when callers rang the 1300 number, or the Prime 1 line, the answering point was the number (02) 4963 7580, rather than, as it should have been, (02) 4963 7466. In effect, the concurrent call capacity was reduced from four available lines to only two.
4. Linkara asserts that this breach resulted in line congestion and service failures. New and existing clients were unable to contact its various businesses.
5. By a statement of claim filed on 6 October 2020, Linkara claims damages against Telstra. In substance these are for an overpayment of fees for services (overcharging) and equipment not provided, as well as for 'expectation losses', or as Mr Karathanassis put it, the loss of income due to clients not being able to access his business by use of the '1300' number. By its amended pleading, it quantifies its claim for damages (including a component for interest) in the amount of $272,306.
6. Linkara's pleading, in both iterations, was not drafted by a legal practitioner. It appears that Mr Karathanassis drafted the pleading. With no disrespect to him, it did not comply with certain pleading certain basic rules of pleading, such as the requirement to plead the facts necessary to sustain a cause of action, and not evidence; and the inclusion of irrelevancies (to the action in contract), such as complaints about the way that Telstra dealt with his complaints. There was much repetition. The facts were not organised by reference to a cause or causes of action in the way familiar to lawyers and indicated as desirable pleading practice [1] . Indeed, the cause(s) of action was or were obscured.
7. Nevertheless, Telstra acknowledged its understanding that Linkara was running an action for damages for breach of contract. I would add, with reference to Linkara's pre-hearing written outline of submissions, that it also relied upon rights asserted by reference to the Australian Consumer Law. There was some debate about that at the commencement of the hearing, which I will return to.
8. Separately, Telstra cross-claims against Linkara for a small sum ($1,838.91) representing unpaid charges on an invoice.
9. The issues identified by Telstra all concerning an action for damages in contract, as requiring resolution were: 1. whether Linkara has proved that it suffered loss or damage at all (the 'Damage' issue); 2. whether Linkara has proved that any such loss or damage was caused by a breach of contract (or I would interpolate, breach of a consumer guarantee) (the 'Causation Issue'); 3. whether there were any losses which were sustained after 6 October 2014 when the limitations period expired (Telstra asserting that a claim for losses sustained prior to that date is statute-barred, and further asserting that s 56 of the Limitations Act is not engaged) (the 'Limitations Issues'); 4. whether the losses claimed (for loss of profit and loss of likely savings) are excluded by the terms of the contract (the 'Exclusion Issue') 5. whether any residual losses are limited by the terms of the contract (the 'Residual Limitation issue'); and 6. whether Telstra has proven its cross-claim.
10. Mr Karathanassis, director of the trustee company, appeared [2] . There was no proof given to the Court that he had the authority to act for the company, however, Counsel for Telstra did not take any point about that and the defendant undertook to the Court that in the circumstances that had occurred throughout the prior history of the litigation, it would not seek its costs personally against Mr Karathanassis should the plaintiff fail in its claim(s) (or Telstra succeeded in its cross-claim).
11. At the outset of the hearing, Mr Karathanassis did not disagree with Counsel for Telstra's statement of the issues for adjudication. But he added to the list questions of whether provisions in the agreements between the parties could be avoided; referring, somewhat obliquely, to the Australian Consumer Law ("ACL"). That argument brought to the fore general consideration as to whether the plaintiff should be entitled to run an alternative cause of action being an action for relief under the Australian Consumer Law. I will defer consideration of those questions until after consideration of the issues arising on the contract claim.
12. I made it plain to Mr Karathanassis, during the course of a brief interruption of his oral opening address, that the Court was limited in what issues it could adjudicate by reference to what emerged from the pleadings [3] .

The plaintiff's evidence

1. In his principal affidavit, Mr Karathanassis set out (at paragraphs 30-45) Linkara's claim for damages, which he described as comprising fees (over) paid and loss of opportunity to profit.
2. Earlier, at paragraph 7 of his first affidavit, he alluded to a letter he had sent to the District Court (with attachments) on 14 December 2020 in which he set out (at point 2) the multiple 'issues' he had faced concerning Telstra's services; some (but certainly not all) of which concerned his complaints about the defective nature of the ISDN service.
3. At point 6 of that letter, as a precursor to fuller detail set out in his affidavit, Mr Karathanassis asserted that certain contracts that he had been working on had been affected by the loss of service.
4. At points 24 and 25 of that letter there was a table which set out the fall in average monthly income and loss of profit when comparison was made between the period prior to 2012 and the period from after 2012 to 2020. Specifically, as to the period from July 2008 to June 2012, prior to the 'Telstra' issue, the company made a profit of $628,418.24 but after 2012, as a result of the unreliability of the 1300 number, suffered a loss of $639,080.48. Mr Karathanassis described this as an 'effective' loss of $1,265,498.70. Mr Karathanassis said that he did not attribute all of this to Telstra.

Claim for fees paid

1. Mr Karathanassis asserts that Linkara is entitled to a refund of $67,000. This calculation was derived from his taking to two bills. The first bill (A 105 786 063-7) dated 10 October 2011 had a service equipment rental of $817.26 per month. The second bill (A 595 614 073-6) dated 10 March 2012 (after the new service agreement was entered).

Claim for loss of opportunity to profit

1. Mr Karathanassis commenced this part of his evidence by citing the variety of services offered by Linkara (accounting, auditing and tax services; business advisory and financial planning, mergers and acquisitions and equity raising and commercial lending) and sales and commissions that it had received (over an unspecified period) from its customers.
2. He then identified 'high valued' clients who, he asserted "were affected" by phone disruptions, which he then asserted resulted in a loss or failure of contracts, in the following way: "LOSS OF BUSINESS SALES - Hampton Transport (commission - $5,750,000) - Goldsprings Heavy Haulage (commission - $500,000) - Western Plant Hire (commission - $2,900,000) - Hunter Plant Hire (commission - $800,000) - Hogans/Bowers Heavy Haulage (commission - $3,200,000)"
3. Mr Karathanassis also referred (paragraph 35) to certain clients in respect to which arrangements for the supply of accounting and auditing services were terminated. He cites Shell Australia, Hamilton Assets Investments and Viking River Cruises as examples. As to Shell, he said that it "increasingly grew frustrated" that it could not contact Linkara "due to phone services issues" and that arrangement terminated in 2010. As to Hamilton Assets Investments, he said that continuing phone issues "impacted" communication with that claim until, apparently November 2018. Liaising with international clients with service dropouts, Mr Karathanassis asserted, "proved detrimental" to managing this client.
4. Mr Karathanassis expected that Linkara was on a "path" to engage in more services, if not for the distractions and loss or time and clients resulting from 'phone services issues'. Existing and potential new clients because of a loss of confidence in Linkara (for the existing clients) or congestion in the lines (for potential clients).
5. Mr Karathanassis deposed that Linkara had employed 10 staff in 2008 but as at February 2022, it was now down to 2 part-time contracted employees. He deposed that a former auditing client (Liberty Commodities), in respect to which it was accustomed to receiving annual fees of $20,000, dropped Linkara after a review because it was "not deemed large enough".

The wasted time

1. Mr Karathanassis extrapolates from data obtained on subpoena which established that from 1 October 2013 to 30 October 2019, there were 69 'Busy Calls', 22 'Failed Services' and '363 Unanswered Calls' to the conclusion that from an earlier period 10 December 2008 to 30 October 2019, there would have been 118 Busy Calls, 37 Failed Services and 622 Unanswered Calls.
2. He further extrapolates that this equates to 6 months' loss of time and income, if not more. Based on an hourly rate of $250 (excl GST), this amounts to $247,000 (excl GST).

The subpoena to Telstra

1. On 21 June 2021, the plaintiff issued a subpoena to Telstra. The subpoena was not ultimately tendered in the plaintiff's case [4] , although it was referred to in the plaintiff's written outline of opening submissions without specificity. It will be marked as MFI 2. (I have marked the plaintiff's written outline of submissions as MFI 3 and the defendant's written outline of opening submissions as MFI 4).

The proper plaintiff?

1. The cross-examination of Mr Karathanassis was relatively brief. It was dominated by the extraction of admissions by him that in response to Telstra's lawyers request for copies of the contracts between the plaintiff and the entities described in paragraph 35 of Mr Karathanassis' affidavit, the documents which were produced did not identify the plaintiff as the contracting party, as distinct from other entities apparently related to the plaintiff, including Linkara Capital Pty Ltd. Linkara Capital Pty Ltd is a company which appears to have its registered office in Perth.
2. Mr Karathanassis explained that whilst the contract may have been in Linkara Capital Pty Ltd.'s name, it was the plaintiff that actually provided all of the services under the contracts. At paragraph 4(d) of the Amended Statement of Claim, it was alleged that the telephone services with Telstra were "utilised by other entities under the Linkara banner, these being the Linkara Group Pty Ltd trading as Linkara Accountants and Linkara Capital Pty Ltd".
3. When he gave evidence, Mr Karathanassis appeared to suggest that the formal arrangements were reached in this way so as to promote efficiencies within the Linkara Group.
4. Following the completion of the evidence, I raised with Counsel for the defendant my concern whether or not it would be appropriate to order the joinder of Linkara Capital Pty Ltd as an additional plaintiff [5] . The responses of the parties indicated that: (a) Telstra's lawyers had raised the point with the plaintiff; and (b) Mr Karathanassis had indicated that he had received legal advice and assistance as to the proper plaintiff(s). [6] In those circumstances, I formed the view that it was inappropriate, at this very late stage, to exercise the discretion to join any additional plaintiff.

Mr Wheeler's evidence

1. Mr Wheeler is a Technical Investigator within Telstra. He affirmed an affidavit dated 4 March 2022. Despite arrangements being made available for him to attend for it, ultimately, Mr Wheeler was not required for cross-examination.
2. The relevant parts of Mr Wheeler's evidence (to which Telstra's Counsel referred) on the issue of damages were as follows.
3. At paragraphs 26 to 30 of his affidavit, Mr Wheeler gave an account of an analysis of call data information he obtained from Telstra's records covering the period 1 October 2013 to 30 June 2020. Using his experience he set out in a diagrammatic form the ISDN hunt group configuration actually in place for the plaintiff from December 2008 to 2 November 2016. Then, taking a subset of that period (1 October 2013 to 30 October 2016), Mr Wheeler observed the following: "(a) call attempts to 1300 766 631, when configured with 02 4693 7580 as the answering point (reduced capacity): (i) resulted in 13 callers that could be identified as having receiving a "Busy" signal within the dataset; and (ii) of these callers, all callers made successful call attempts at other times (b) call attempts to 1300 766 631, when configured with 02 4693 7466 as the answering point (reduced capacity): (i) resulted in 6 callers that could be identified as having receiving "Busy" signal within the dataset; and (ii) of these callers, 3 callers made successful call attempts at other times"
4. In Annexure J to Mr Wheeler's affidavit, references were made to other complaints made by Mr Karathanassis, or other employees of the plaintiff about the subject problem. This included entries suggesting that 'Karen' rang on 10 August 2016 to air concerns about the ISDN and an entry for 31 January 2018 [7] when Mr Karathanassis reported his concern about an inability to make calls and was reported to have indicated that the problem had been "ongoing for a few years". Mr Karathanassis was also recorded as being happy with the resolution.
5. On a separate topic, but still within Annexure J to Mr Wheeler's affidavit, Counsel for Telstra pointed to other entries, in which complaints were made about other, unrelated issues. These entries appeared (by way of sample) on 24 October 2013, 29 October 2012, 24 April 2012 and 8 November 2011 [8] .

The information on the USB (Exhibit 1)

1. Counsel for Telstra referred to certain rows in the spreadsheet within Exhibit 1 to prove the circumstances when Telstra first became aware of the problem with the ISDN. At row 69 of Annexure H to Mr Wheeler's affidavit (in Exhibit 1 [9] ), a conversation with Mr Karathanassis, apparently on 5 or 6 October 2016 was recorded as follows: "… customer is expecting 3 primary numbers under their GDN 0249637466, however there is only 2 that is working. When checked in axis the third primary number 0249631197 has been inactive since 2009 so they need a third line, customer wants 0249637242 to be the third primary number under the GDN."
2. The same note was recorded at row 59 of Annexure I to Mr Wheeler's affidavit (in Exhibit 1).

The plaintiff's contentions

1. As a preliminary point, in relation to the many contracts [10] which the plaintiff produced in response to a request by Telstra's lawyers, it was apparent that the plaintiff was not the contracting party in any of them. To Telstra this meant that, the plaintiff was not the proper plaintiff to sue. On this point, Mr Karathanassis pointed out that Linkara Capital Pty Ltd was not added as a plaintiff, but it had been referred to in some of the allegations in the amended pleading (including paragraphs 4(d), 6 and 7).
2. Mr Karathanassis referred to the subpoena to Telstra and argued that Telstra had not complied with the subpoena to produce documents as required in the Schedule. At clause 2 of the schedule the requirement for production related to analysis from 8 December 2008 to 2 November 2016. But, it was said, in his affidavit, Mr Wheeler (at paragraph 20) only conducted an analysis for a narrower timeframe (1 October 2013 to 30 June 2020). Mr Karathanassis invited the Court to infer that the damages claim was broader because of this selectivity.
3. More broadly, in oral argument, Mr Karathanassis identified three claims of loss.
4. The first related to fees paid. This was that the plaintiff paid in the order of $92,000 for 4 lines when for most of the time it only received two services. Mr Karathanassis argued that the plaintiff did not derive any value from the two-line services that were functional or operational.
5. The second related to loss of opportunity to profit. There was little more said by the plaintiff in respect to this particular claim beyond which appeared in Mr Karathanassis' evidence.
6. The third related to wasted time. Mr Karathanassis estimated that over the period from 2008 through to when he swore his first affidavit, he had spent 6 months trying to get the problem regarding the lack of functionality in the lines fixed. He accepted that this estimate was purely based upon his recollections, unassisted by any particular documentation; but he was not cross-examined on that estimate. He said that he became aware of a fundamental problem "from day one". He said (and this appeared to go beyond what he said in his first affidavit) that Telstra had come to his premises in 2011 to deal with the problem. Instead, it offered, and he accepted, entry into a new agreement. He became aware of a problem again in September 2016 when he spoke to someone, offshore, but affiliated with Telstra, which led to a chain of events culminating in diagnosis of the problem in early November 2016.
7. In cross-examination, it was also put to Mr Karathanassis that he could not point to any document recording a complaint by his company about the ISDN feature between 2008 and 2015. Mr Karathanassis did not dispute this, but according to him, that did not mean that he had not expressly (verbally) complained.
8. Based upon his hourly rate ($250) and his extrapolation of 'Busy Calls', 'Failed Services' and 'Unanswered calls', this claim was worth $247,000 (excl GST).

The defendant's contentions

1. In addition to its proper plaintiff point, which it contended was dispositive to at least part of Linkara's claim, Telstra relied on other matters. It pointed out that the onus is on Linkara to prove the loss or damage which it claims and the amount of the loss [11] . Mr Karathanassis' evidence should be rejected as vague and self-serving and Telstra characterised Linkara's claim as being unascertainable, or what might alternatively be described as unverifiable.
2. In response to the claim for loss associated with a waste of time, Telstra pointed out that its business records indicated that Telstra received no notice of the problem until April 2015 before addressing it fully by November 2016. The inference was that contrary to Mr Karathanassis' evidence, based upon his mere recollections, that such time as he invested in trying to deal with the problem only commenced from April 2015, not back to "day one" as he had asserted, being in 2008. The defendant submitted that the loss, such as there was, was limited to the period from 2008 to 2016.
3. Further, to say, as the plaintiff contended, that six months represented a reasonably fair estimate of time spent by Mr Karathanassis, essentially complaining about the ISDN service, was to ignore complaints he or the plaintiff had brought about other issues in this time.

Overpayment for services actually received

1. Subject to questions regarding the limitations defence and contractual exclusion and limitation, I find that the plaintiff is entitled, in principle, to damages representing the difference between what it paid to Telstra for 4 operational lines and what it actually received, being 2 lines. This might be regarded as a loss of value claim. Its value is calculated by the same measure of compensation available under s 267(3)(b) of the ACL which I address later in these reasons; although the result of the quantum for this head of loss might be affected by the applicability of limitations or exclusion clauses available to Telstra under the contract.

Wasted time

1. I accept Mr Karathanassis evidence that he, as the directing mind and will of the plaintiff and acting in that capacity, invested significant amounts of time trying to deal with issues associated with the ISDN. I accept, further, that this is a head of loss which Linkara can claim. But Linkara's difficulties are two-fold.
2. First, not only does it carry the onus of proving that a claimed head of loss has been suffered, but it also carries the onus as to its quantum. I am not persuaded that the Court can proceed on the basis that 6 months' time is a reliable estimate of time even if I accept (which I am inclined to do) that $250 represents a reasonable hourly rate. The time estimate was no more than a 'back of the envelope' calculation founded only upon recollection and some awkward level of extrapolation. There was no system of internal recording of time within Linkara spent dealing with Telstra and, moreover, Telstra's documents do not suggest a level of direct contact with Mr Karathanassis. The last sentence should not be taken as any denial of the time that Mr Karathanassis, or other staff within Linkara, otherwise took, such as attempts to placate existing customers manifested, perhaps most obviously, in email exchanges with its customers. The problem is mainly one of quantification, in ascribing a value to that time. It appeared to me to be a form of non-economic loss.
3. The second - more fundamental - problem is whether wasted exertion, as non-economic loss, is even compensable in contract. In contract law, there are very significant limitations upon the recovery of non-economic loss for breach of contract [12] . In Baltic Shipping, Mason CJ (with whom Toohey and Gaudron JJ relevantly agreed) identified the exceptional categories of case where damages for distress and disappointment were recoverable in contract as being: (i) damages for injured feelings in an action for breach of promise of marriage; (ii) damages for pain and suffering, including mental suffering and anxiety, where the breach of contract causes physical injury to the plaintiff; (iii) damages for physical inconvenience including fatigue; (iv) damages for mental suffering directly related to physical inconvenience such as "vexation" and "discomfort"; and (v) damages for distress, vexation and frustration where "the very object of the contract has been to provide pleasure, relaxation or freedom from molestation" [13] .
4. The loss or damage, in this case, of wasted time and exertion is, as Telstra submitted, broad enough to fall within what may be described, in shorthand, as 'distress and disappointment' [14] , however, the claim does not obviously fit within the exceptional categories of case identified in Baltic Shipping. I find that it is not recoverable in contract.
5. I will revisit this question of recovery of this type of loss later when considering a potential claim under s 267(4) of the Australian Consumer Law.

Lost profits and loss of opportunity to profit

1. Telstra's contract was with the plaintiff; not Linkara Capital Pty Ltd or the Linkara Group more generally. There is no reference within the corporate services agreement (in 2008 or 2011) to benefits being conferred by Telstra upon Linkara Capital Pty Ltd or the Linkara Group. The privity rule of contract indicates that only the plaintiff has title to sue for breach by Telstra, and then only for loss or damage that it has sustained as the promisee.
2. The circumstance that other entities within the Linkara Group may have relied upon the services Telstra contracted to supply to the plaintiff does not generate an entitlement in the plaintiff to sue for losses sustained by those other entities. This is a consequence of the 'separate entity' principle applicable to corporate groups. [15]
3. I agree with Telstra's submission that the evidence adduced about existing contracts with customers was limited to other entities and not the plaintiff.
4. To the extent that a claim is based upon loss in profit arising from the cessation of such arrangements, the loss has been sustained by the other entity, or entities; not the plaintiff. The result is no different insofar as the claim is based upon the loss of commercial opportunity.

Other suggested losses

1. To the extent that Mr Karathanassis complains of ill-health which he believes was caused by Telstra's breach, only he, and not Linkara, has standing to prosecute a claim for damages for that particular head of loss (even if, which is doubtful to say the least, such a claim could be prosecuted for breach of a commercial contract).
2. Further, to the extent that Mr Karathanassis complains about damage to the corporate reputation of the plaintiff (rather than his own, which would require him to be a party to the proceeding) that action lies in substance in an action for defamation, not in contract [16] (assuming that the plaintiff fell within the limited exception [17] to the general statutory preclusion upon companies suing in defamation).

Evidence for the plaintiff

1. There was little evidence adduced from the plaintiff on the matter of causation which was different on the issue of the damage or loss it claimed. I will return to the significance of an omission to call evidence from third parties later.
2. In his second affidavit, Mr Karathanassis responded (at paragraph 7) to certain statements made by Mr Wheeler in (particularly paragraph 27) of the latter's affidavit. Mr Karathanassis made generalised assertions to the effect that: 1. it was irregular for calls made to 02 4963 7466 to come through in utilising the 4 lines (and Mr Karathanassis here cross-referenced p 19 of Annexure 1); 2. single calls (with no lines in use) or concurrent calls made to Linkara via the 1300 number would be successful, however on many occasions, phones did not ring when the 1300 number was called. Clients frequently reported to him that they could not get through but received a message that the number was not operational; 3. it was incorrect to say that a call made to the 1300 number, when either or both 02 4963 6240 and 02 4963 1138 were in use would be successful. This was because calls were not directed through to 02 4963 6240 and 02 4963 1138 due to error in the service set up. 4. it was also incorrect to say that a call made to the 1300 number, when either made to 02 4963 7580 or 02 4963 1123 were in use would be successful. This was because calls were not directed through to 02 4963 1138 due to the error in the service set up. 5. it was incorrect to say that a call made to the 1300 number, when both the 02 4963 7580 or 02 4963 1123 were in use would be unsuccessful and receive a 'busy' signal. Although a 'busy' signal would occur, calls were not directed through to 02 4963 1138 due to the error in the service set up.

Missing evidence from third parties

1. Mr Karathanassis accepted in cross-examination that he could not point to correspondence from third parties to the substantial effect that they did not engage, or ceased to engage, with the plaintiff, because of an inability to contact the plaintiff.
2. In answer to a question by myself, as to whether the plaintiff had an internal system recording such indications from third parties, he referred, somewhat obliquely, to the existence of software and what may have been on it. But the tangible products of that software, in so far as they may have cast light on communications with third parties, were not before the Court.
3. He also explained, in effect, that because of a lack of 'materiality', it was impractical for him to seek out third parties and collect evidence from them indicating and explaining why they had terminated, or refrained from engaging, with the plaintiff because of difficulties contacting the plaintiff. It was not altogether clear to me whether the reference to 'materiality' was from the perspective(s) of the third party or the plaintiff (or both), although it appeared more to be a desire not to engage with third parties because of relatively small amounts of money.

Parties' contentions

1. Telstra argues that there was no causal connection between the heads of loss identified and its conduct. As to the loss of opportunity to derive profits claim, there was no evidence from third parties as to taking, or refraining from taking, a course of action on account of two non-performing or non-operational lines even if it was the plaintiff, rather than some other entity (i.e., Linkara Capital Pty Ltd) was the proper plaintiff.
2. Indeed, analysis from Mr Wheeler (paragraph 29 of his affidavit) indicated that the problem was exaggerated. Of the sample he selected only a very small proportion of callers who received a 'Busy" signal did not successfully call the plaintiff later on.
3. As to the 'wasted time' claim, records showed a range of other complaints made during the period about which Mr Karathanassis argued he had spent time complaining to Telstra. Having discharged its evidentiary onus, by Telstra suggesting that complaints unrelated to the breach were made, the ultimate onus fell upon the plaintiff to prove that the estimate of the time spent investigating and complaining about the problem was attributable solely to the breach contended.
4. There were no submissions by Mr Karathanassis on causation separate from his submissions about the losses or damage the plaintiff contended it sustained.

Consideration

1. A party seeking an award of damages for breach of contract must establish a causal connection between the breach and the particular loss claimed [18] .
2. It is well-established that a claim of lost opportunity to earn a profit is compensable in contract [19] , however, the requirement of causation is not diluted on that account. It remains necessary for the claimant to establish, on the balance of probabilities, that the loss of the opportunity was caused by the breach. [20] It is only after this causal link is proved that the assessment of damages so caused by the breach will feature an evaluation of the value of the opportunity (which does not have to be more than 50%, but may be something less, so long as it is a substantial chance).
3. Even if, contrary to what I have found, Linkara was the proper plaintiff, in the way that Linkara has formulated its claims for loss of profits and loss of opportunity to profit, it is not sufficient for it to establish causation merely by pointing to proof of a dropping off in revenue after the breach occurred and out of court (and hearsay) reports from existing or potential clients as to the difficulties (without more) that they had experienced in getting through to Mr Karathanassis or other Linkara employees. Causation is not correlation. It remains necessary, at the point of causation, for Linkara to establish, on the probabilities, the course of action that its existing or potential clients would have done, but for the breach, to make out a connection between breach and losses of profit or the opportunity to profit. In practical terms, this meant proof that existing clients would not have ceased existing arrangements or potential clients would have entered arrangements had a fully operational ISDN facility been in place. This is not something to be guessed at. Linkara did not attempt to prove what third parties did do, or refrained from doing, as a result of any difficulty in calling the lines which were not operational. If, as Mr Karathanassis explained, he was concerned not to bother past clients to prove his case on causation, however understandable that might be from a commercial perspective, it does not make up for deficiency in proof.
4. Linkara simply left the matter of causal connection to the claimed losses (actual loss of profits and loss of opportunity to profit) to be inferred. But such inference was far from obvious, having regard to Mr Wheeler's evidence that, on the basis of sampling undertaken, a preponderance of callers who were unable to call through on one defective line were actually capable of getting through to the plaintiff on another line. The danger of drawing the invited inference is reinforced in circumstances where many clients (existing or potential) may have had other means of communications with professional advisers - most obviously email - if telephone services were impaired. It might be doubted, having regard to the nature of the advisory services which the Linkara Group apparently supplied to its clients, how far the performance of work for clients would necessitate phone calls to Mr Karathanassis; given the prevalence of email as an alternative mode of communication. Yet a further inference is that existing or potential clients may have turned to competitors for reasons or considerations unrelated to difficulty in getting through to the plaintiff, such as price.
5. Leaving aside the discrete question of who was the proper plaintiff, I am not persuaded, on the probabilities, that a causal connection exists between Telstra's breach and the lost profits or loss of opportunity to make profits.
6. I am, however, satisfied that, at the level of causation (rather than assessment of quantum), a connection is demonstrated between the overpayment for services not fully supplied (the loss of value claim).
7. In its supplementary written submissions on the ACL claim, and specifically the relief that may have been obtained under s 267(3)(b) of the ACL, it identified the loss of value as being in the sum of $7,775.19. I refer in the section of these reasons which deal with the ACL claim how that sum was derived. There is no reason why the quantum for loss of value should differ for the action in contract and the action for compensation under s 267(3)(b). Both quantified the difference between the cost of the services paid for (for four operational lines) and the cost of what was received (the two lines).
8. However, the right to recover the sum of $7,775.19 is potentially affected both by: (a) the limitations defence and the exclusion and (b) the limitation of liability clause in the contract to which issues I will shortly turn.
9. As I understood it, it was not Telstra's case that the lack of functioning of two services could not have made any difference in the plaintiff's capacity to receive calls. The problem of a lack of a fully functioning ISDN clearly required identification and rectification.
10. Before I pass on from the subject of causation, I note that my findings on causation have centred around loss or damage attributable to the ISDN issues. It is apparent from some of the items referred to in the Amended Statement of Claim, including losses because of Telstra's alleged act in disconnecting the 1300 number are claimed. There is no recovery for other losses which are attributable to conduct by Telstra not proven to be in breach of contract. The plaintiff did not articulate or, at least, establish that Telstra's act in disconnecting the 1300 number was in breach of a contractual obligation.

The Limitations Issues

1. The onus falls upon Telstra to prove that the action in contract is statute-barred.
2. There are two questions here. Whether and when s 14 of the Limitation Act 1969 (NSW) became engaged and, secondly, whether the limitations period was postponed because of the operation of s 56 of the Limitation Act.
3. As to the former question, by s 14(1)(a) of the Limitation Act, a cause of action founded on contract is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff. An action in contract accrues on the date of breach. By s 63, following the expiration of the limitation period fixed by the legislation, the cause of action is extinguished.

Parties' contentions

1. Telstra argues that losses caused by Telstra's breach of contract prior to 6 October 2014 (6 years prior to the commencement of the proceeding) are statute-barred.
2. Linkara submitted that s 14 does not apply in this way where, as here, there was a continuing breach or were successive breaches of contract after 6 October 2014. Mr Karathanassis submitted that it could not be right that the limitation period could expire when he was unaware of Telstra's breach (if not the damage itself) until 2 November 2016.
3. Linkara alternatively argues that s 56 is engaged which suspends or postpones the limitation period in s 14. It says that Telstra made a mistake when installing the ISDN service in December 2008, which meant that it did not supply the service that it contracted to supply. Linkara made a common mistake in thinking that the service was properly supplied when it was not, and it only discovered its mistake on 2 November 2016 when a Telstra technician inspected its system. If it had known of the problem, it would have gone to another Telco provider, but it trusted Telstra.

Consideration

1. Telstra's argument about when time beings to run for the purposes of an action in contract must be accepted: for actions in contract time commences to run from the date of breach irrespective of when damage occurs [21] . In this respect, the action in contract is different to the action in the tort of negligence. Contrary to Mr Karathanassis' submission, this is not a situation of successive breaches of contract up until the point that the problem was diagnosed and resolved, but rather Telstra's continued failure to remedy its past breach [22] . I therefore accept Telstra's submission that, subject to any postponement of the time bar, any losses occurring prior to 6 December 2014 caused by Telstra's breach are statute-barred.
2. Linkara invokes s 56. Its problem is that its argument construes 'mistake' in s 56 more broadly than the authorities permit. Established authorities indicate that: (a) it is not a mistake by the defendant which founds a cause of action; and (b) the mistake (by the claimant) must be an essential ingredient to the cause of action [23] . A suggested policy reason for that view is that a mistake by the defendant might open the door to an action in negligence and to postpone the time bar might upset core principles relating to the accrual of actions in negligence [24] . The circumstance that Linkara mistakenly believed that it received the services that conformed to Telstra's contractual obligation to supply when it did not actually receive such services is not an essential ingredient to its action in contract. The time bar is therefore not suspended to commence from 2 November 2016 when the problem was diagnosed.
3. I confirm that losses occurring prior to 6 December 2014 caused by Telstra's breach are statute-barred. Taking into account Mr Wheeler's calculations, (which appear at paragraph 17(e)(vii) - (x) of his affidavit), in the period from 2014 through to 2018 [25] , it appears that the sum of $2,831.58 was charged for rental. I find that the loss of value is quantified in the amount of $2,831.58, but that sum is now to be considered against the exclusion and limitation clauses in the contract.

The Exclusion Issue and the Residual Limitations Issues

The contractual provisions

1. Clause 5 of the Corporate Services Agreement dated 7 November 2011 (and the corresponding provision in the 2008 Corporate Services Agreement) is titled 'Limitation of Liability'.
2. Clause 5.2 provided that: "If we fail to meet any of our service level obligations as a result of any interruption or delay to your Service, we accept liability to you, but limit out liability to the applicable serve level rebates or credits. Where you are not entitled to a service level rebate or credit, we limit out liability to an amount equal to the Service Charges billed for the affected Services for the period of the interruption or delay."
3. Clause 5.3 relevantly provided that: "We accept liability arising from our breach of contract or negligence: ….. ….. (c) unless clause 5.2 applies, for any other cost or expense you reasonably incur that is a direct result of, and flows naturally from, such breach or negligence (but excludes loss of profits, likely savings and data), but we limit our liability for all such claims in aggregate to the total amount payable to us under this Agreement in respect of the first year of the Term." (emphasis supplied)
4. Clause 9.2(c) of the 2011 Telstra Customer Terms (for small business) is in materially identical terms. Counsel for Telstra explained, without contradiction, that these terms were incorporated in the corporate services agreement.
5. Clause 5.4 provided that: "Other than for the liability we accept under clauses 5.2 and 5.3, we exclude all other liability whether to you or a third party for breach of contract, negligence, or breach of any other law. For any liability which cannot lawfully be excluded as it is under this clause 5, our liability is limited to resupplying or paying the cost of resupplying services and repairing, replacing or paying the cost of repairing or replacing goods." (emphasis supplied)
6. Clause 9.3 of the 2011 Telstra Customer Terms (for small business) is in materially identical terms.

Mr Wheeler's evidence

1. With reference to cl. 5.3(c), Mr Wheeler deposed (paragraph 17(e)(i) of his affidavit) that from 2008 to 2009, being the first year of the Term, Linkara was charged $890.90 for rental and usage (of which all related to rental charges).

The parties' contentions

1. Telstra submits that it is open to parties to agree to exclude [26] or limit [27] one or other's liability for certain forms of loss and damage.
2. Telstra contends that any (compensable) losses of profits to Linkara arising from the reduced capacity fall squarely within the exclusion in cl 5.3(c) of the 2011 Corporate Services Agreement and clause 9.2(c) of the 2011 Telstra Customer Terms, so that Linkara cannot recover those losses.
3. Telstra contends that for other residual losses, being costs or expenses which Linkara reasonably incurred, and which were the direct result of, and flowed naturally from, Telstra's breach of contract, the operation of cl 5.3(c) of the 2011 Corporate Services Agreement and cl 9.2(c) of the 2011 Telstra Customer Terms is such that Telstra's liability was limited in an aggregate sum representing the total amount payable to Telstra for 12 months of acquiring the services. As I understood Telstra to submit, this would encompass damages for loss of value and (if, contrary to what I have found, it was compensable) wasted exertion. By Mr Wheeler's calculations, that sum is $890.90.
4. Linkara did not make submissions (on the contract claim) about the exclusion or limitation clauses, or the amount recoverable in damages for breach of contract, should either clause be found to be engaged.

Consideration

1. The following analysis is premised on findings (contrary to earlier findings) that Linkara is the proper plaintiff to sue for losses which were actually suffered by entities (e.g., Linkara Capital Pty Ltd) who utilised services and that all of the losses suffered (as claimed) were caused by Telstra's breach.
2. I agree with Telstra's submission that the operation of cl 5.3(c) is such that a claim for loss of profits, whoever within the Linkara Group suffered such loss, is excluded. That would extend to excluding the loss of profits anticipated from any arrangements which the plaintiff had with existing clients, which terminated by reason of Telstra's breach.
3. However, in relation to the loss of opportunity to profit from new or potential clients, that form of loss does not fall within the express exclusion contained within cl 5.3(c). There is a specificity in the exclusions identified, and a loss of commercial opportunity is not included.
4. That leaves in question whether loss in the nature of a loss of commercial opportunity in other entities within the Linkara Group may otherwise fall within the rubric of "any other cost or expense you reasonably incur that is a direct result of, and naturally flows from, such breach…".
5. The language of this provision appears to have its provenance in the first limb of the rule in Hadley v Baxendale [28] , according to which the promisee is entitled to recover damages as "arise naturally, that is according to the usual course of things, from the breach"; as distinct from the second limb of the rule, by which recovery may also extend to compensate for loss or damage which "may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach" [29] .
6. I am not persuaded that a loss of commercial opportunity falls within cl 5.3(c). It strikes me that cl 5.3(c) generally permits recovery for direct loss, in contra-distinction to excluding loss which is indirect or 'consequential', and, arguably, the specific exclusion of loss of profits is to emphasise the contracting parties' agreement that if there was any doubt about the true character of the loss, lost profits were to be treated as being the nature of consequential loss. (The parties' agreement in that particular respect rendered moot the nice question whether loss of profits truly amounts to direct or consequential loss [30] ). However, it might be expected that a loss of commercial opportunity is more likely to be a species of consequential (i.e., not direct) loss. Though not specifically excluded in cl 5.3(c), it is generally excluded under cl 5.4.
7. I accept that the head of loss claimed and determined to be available, being for loss of value, falls within cl 5.3(c).
8. It will be recalled from my earlier consideration of the heads of loss or damage which may validly claimed that I expressed difficulty in accepting Mr Karathanassis' calculations of the losses representing the overpayment for services (loss of value). It is well-known that where it is found that a contract has been breached, difficulties in estimating loss should not preclude the court from doing the best that it can on the evidentiary material which it is within the power of the parties to produce (and, to that end, an innocent party may take advantage of the maxim that where a contract-breaker has, by its conduct, put the issue of proof of loss beyond the innocent party's capacity, certain inferences favourable to the innocent party may be made).
9. At paragraph [87] above, I indicated what the quantity of loss would be, taking into account the limitation issue.
10. Factoring in the effect of the exclusion and limitation clauses, in circumstances where there is no dispute about Mr Wheeler's calculations, it follows that the aggregate amount for damages for the plaintiff for Telstra's breach of contract is limited to $890.90.

The de facto amendment application

1. At paragraph 28 of Mr Karathanassis' first affidavit and again in his written opening submissions, he referred to rights to remedies under the Australian Consumer Law and, in the affidavit, he contended (at paragraph 28) that Telstra's incorrect installation constituted "a major breach of contract under the (ACL)".
2. However, there had been no pleading of any statutory action under the provisions of the ACL. Telstra objected to Linkara raising any action under the ACL, correctly observing that such action was not indicated in either iteration of Linkara's statement of claim (the amended version which, at least, had been prepared with legal assistance [31] ).
3. Although the status of a party as being unrepresented litigant does not confer immunity on the party from the operation of procedural rules, such as the rules of pleading, in circumstances where Mr Karathanassis did not suggest that any new allegations of fact were relied upon to sustain the statutory action and where such action had been flagged, albeit informally, I was not persuaded to deny the plaintiff the opportunity of running the statutory action simply because it had not been pleaded.
4. However, a difficulty is that the bare assertion of Mr Karathanassis' rights under the ACL or his outline of opening written submissions, did not adequately put Telstra on notice of what rights were infringed. A mere assertion that the contract was breached was inadequate: Telstra was entitled to know which consumer guarantees were relied upon and how, it was said, they were breached. Faced with this difficulty, indulgently, I briefly adjourned the proceeding to enable Linkara to inquire and ascertain what provisions under the ACL it contended were infringed.
5. Upon resumption of the hearing, Mr Karathanassis said that the plaintiff relied upon ss 60-64 of the ACL and remedies in ss 237 and 243 of the ACL. As later indicated to Counsel for the Telstra, I also understood the plaintiff to rely upon s 267 of the ACL. [32] As to the remedies, earlier in the hearing during his opening address, Mr Karathanassis had muted the notion that the plaintiff was also seeking to avoid some of the contractual provisions (presumably the exclusionary or limitation provisions relating to damages) in the subject agreements.
6. However, as explained to Mr Karathanassis in the course of argument, although it could be said that Telstra could not, in substance, be heard to complain that it was taken by surprise if the plaintiff relied upon a breach of consumer guarantees, based upon the same substratum of facts to sustain the contract claim and seek commensurate remedies, it was a very different proposition to say that the plaintiff could argue that some provisions in the agreements amounted to 'unfair terms' within the meaning of Part 2.3 of the ACL. I rejected the application to amend to the extent that the plaintiff sought to avoid terms in the agreement based upon those provisions (T 16-17). That would involve new allegations and set off lines of factual inquiry in circumstances where the Court was informed that, at least in connection with the amendments to the original iteration of the pleading, Linkara had received legal assistance. I return to this matter later when addressing argument about the limitation on damages in cl 5.4 where, it appeared, that the plaintiff was impermissibly attempting to go beyond the scope of the grant of leave to amend by submitting that clause 5.4 should be avoided.
7. Ultimately, Telstra did not contest the plaintiff relying upon breaches of ss 60-64 and remedies arising from such breaches, notwithstanding omissions in the pleading. This was on the basis of Telstra being granted leave to provide supplementary submissions after the hearing had concluded on the action under the ACL (with Mr Karathanassis having an opportunity to make submissions in response). The parties' supplementary submissions on the ACL action will also be marked (Telstra's submissions being MFI 5; and Linkara's submissions being marked MFI 6).

Was the plaintiff a 'consumer'

1. Telstra submitted that the plaintiff's claim under the ACL fails at the threshold since it is not a 'consumer'.
2. That concept is defined in s 3(3). At the material times in which Telstra supplied services to the plaintiff [33] , s 3(3) provided that: "(3) A person is taken to have acquired particular services as a consumer if, and only if: (a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of subsection (1) (a)--that greater amount; or (b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption."
3. By s 3(10) of the ACL, there is a presumption that where a person alleges that the person is a consumer in relation to particular services, then the person is a consumer in relation to those services unless the contrary is proven.

Services

1. An anterior question before considering Telstra's submission about the 'price' is characterising the relevant services. It is not necessary, for the purpose of s 3, that services are provided under contract to enliven rights in consumers under the ACL; even if that may be the usual way in which services are supplied by corporate suppliers generally, or at least those as large as Telstra.
2. As to the nature of the services to be supplied, I find that they are no different to those which were to be supplied under the contracts. That is to say, they were ISDN group hunt feature services. The services were identified in the Services Schedule to the Corporate Services Agreement. Because the plaintiff's claim relates to conduct occurring over the period from 2008 to when the proceeding commenced (in 2020), the services were supplied from 8 December 2008 [34] up to and, on the plaintiff's case, extending beyond 2 November 2016.
3. The evidence indicates that through the entirety of this period, the services were supplied under two consecutive and apparently [35] materially similar Corporate Services Agreements (incorporating small business terms) from 2008 to 2011 and from 2011 to a later period.
4. Linkara's complaint under the ACL, similar to its claim under contract, was that there was a continuous failure (not complying with consumer guarantees) from services supplied in the period from 2008 to 2020; which general period spanned the entry into the two distinct, but materially similar contracts with Telstra. Linkara did not differentiate, in its assertions about Telstra's failure to comply with consumer guarantees, in the period before 2011 and the period after 2011; that is to say, that the deficiency in the quality or nature of the services differed in those periods.

The price of the services

1. A corporate plaintiff can be a 'consumer', for the purposes of s 3(3)(a) [36] . I have noted the statutory presumption in s 3(10). In my view, the onus is upon Telstra to prove that the plaintiff was not a consumer [37] .
2. Section 3(4) of the ACL provides that the amount paid or payable for services purchased by Linkara is taken to be the price paid or payable by Linkara for the ISDN group hunt feature services, except if the sub-section relating to mixed supply applies.
3. There was no mixed supply here. The services were identified in the Services Schedule to the Corporate Services Agreement. For the purposes of s 3(4), the amount paid or payable by Linkara was the price paid or payable by Linkara in respect of the ISDN group hunt feature services.
4. Counsel for Telstra referred to evidence given by Mr Wheeler (this part not being disputed by Mr Karathanassis in his affidavit in reply) at sub-paragraphs 17(a)-(e), which was to the effect that Linkara expended over $40,000 ($47,259.04) for the services it received. Counsel for Telstra argued that Mr Wheeler's evidence was based upon the business records.
5. Mr Karathanassis referred the Court to the limited term (2 years) identified in the Service Schedule of the corporate services agreement dated 7 November 2011 and, thereafter, charges made in the period the subject of the claim could not have exceeded the statutory cap. In his supplementary written submissions, he identified that the amount spent in this two-year period was $23,313. Mr Karathanassis also referred to the concept of 'Service Agreement', as it is contained in cl 16 of the General Terms for Small Business, which relevantly defined the term as "any other agreement for a service with us or one of our subsidiaries that may be included on a Single Bill". 'Single Bill' meant the consolidated billing service provided by (Telstra). From this, Mr Karathanassis submitted that each single bill was a new service agreement.
6. Telstra's submissions raise what might be termed an 'aggregation' argument in the calculation of price. It is not crystal clear from the authorities that this argument is supported in principle, at least without qualification or reservation.
7. There are few authorities in s 3(3)(a) of the ACL which have looked at 'price', but in the general context of other consumer protection legislation there were a number of decisions which have looked at the monetary threshold, and the 'aggregation argument' relating to relief for business consumers under the former s 51AC of the Trade Practices Act 1974 (Cth), where it was alleged that suppliers in trade or commerce engaged in conduct which was 'unconscionable' [38] . Section 51AC(9) of that legislation effectively provided an exemption from the statutory norm of conduct when the supplier dealt with 'small business' customers.
8. In that context, in Overlook v Foxtel (2002) Aust Contracts Rep 90-143, Barrett J said, at [95]: "where, as here, there is a continuum of supply and acquisition under a single contract over a period, the relevant "price" is, at any time, at least the aggregate of the amounts paid in respect of the supply and acquisition before that time - I say "at least" because the element of futurity present in these provisions makes it clear that past events and past payments are by no means the end of the matter."
9. This reasoning was rejected by the Full Federal Court of Australia in Jefferson Ford Pty Ltd v Ford Motor Company (2008) 167 FCR 372. That case concerned an allegation of unconscionable conduct of one party in terminating an agreement.
10. In the leading judgment of Gordon J (Finkelstein J and Rares J agreeing in separate and concurring judgments), her Honour rejected (at [120], [143]-[151]), as a general principle, the proposition that where the supply of services was rendered under a series of discrete transactions pursuant to a contract, the prices of each transaction can be aggregated for the purpose of calculation of the price of the services overall. One of the problems with the approach was that it could permit a supplier to act in contravention of a statutory prohibition (in that case the prohibition upon unconscionable conduct) for part of the supply period and yet not be subject to (the prohibition) notwithstanding that the conduct in relation to a number of particular supplies was, in the circumstances of each supply, in contravention. Thus a supplier could escape being subject to a statutory norm of conduct by relying upon services well before conduct contravening the statutory prohibition. To Gordon J (Finkelstein J and Rares J agreeing) what was critical was identification of the particular conduct and particular circumstances of the particular supply (at [112], also [152]).
11. Nevertheless, her Honour did not discount the possibility that an aggregation could apply and instanced some examples. At [151], her Honour said: "… there may be an instalment contract under which there is one supply but payment is made by way of instalments. In those circumstances, the facts properly construed also may support aggregation of the instalments. A third example is where the pleadings or evidence (or both) demonstrate that the same conduct or course of conduct was in connection with unspecified, multiple, or all supplies over a specified period of time. In those circumstances, the facts may support aggregation of the prices. In other words, just as a supplier may not contract out of the operation of s 51AC by aggregating prices where the facts do not support it, so too may the business consumer not "contract in" to the operation of s 51AC by disaggregating where the facts do not support it." (emphasis supplied)
12. Finkelstein J said (at [33]): "where each contract for the sale of goods … appears to be unconnected with the others, aggregation is simply not possible"
13. AIthough there were two contracts here, having regard to the way in which the plaintiff framed the claim, in the absence of any discriminating feature as to the two contracts, I consider that this is a case where the same conduct complained of - a defective and incomplete service, comprising two of the lines - spanned a long period, from December 2008 through to at least the date when the plaintiff commenced the proceeding.
14. Here, the services Telstra supplied under the agreement did not cease at 2011, but were effectively rolled over and Mr Karathanassis' own calculations of fees paid to Telstra in his first affidavit (paragraph 32) indicate that the price for the services exceeded the cap. (To some degree Counsel for Telstra disputed the accuracy of the calculations, since they involved other services, other than the ISDN group hunt feature but that is presently of no moment). To adapt what Gordon J said in Jefferson Ford, the plaintiff is not entitled to 'contract in' to the protections under the ACL, by 'disaggregating', that is by ignoring the price it paid for services after a particular period. It received and paid for all of the services throughout all of the period the subject of its claim; and not just for some of them. According to its claim, all of the services were subject to the same defect: the same loss of operational capacity emanating from an incorrect configuration The amount which Linkara paid over the period of its claimed losses exceeded $40,000.
15. I do not consider that the plaintiff's references to the definition of Single Bills as leading to acceptance of the plaintiff's submission that each single bill constituted a new Services Agreement. The services were supplied pursuant to a single services agreement, albeit that separate bills would issue. Nor do I accept the plaintiff's submission that the agreement 'begins again' at the beginning of each month. But even if it did, it would not assist Linkara.
16. Accordingly, the plaintiff did not satisfy the requirement in s 3(3)(a).
17. Linkara did not rely upon s 3(3)(b) as an alternative basis for arguing that it was a consumer. That was not surprising, given the scale of the business or commercial operations engaged in by Linkara and the business losses which Linkara wishes to sheet home to Telstra.
18. Linkara could not be regarded as a 'consumer' within the meaning of s 3(3). It is therefore not entitled to the benefit of the consumer guarantees in ss 60, 61 or 62 of the ACL, nor the remedies for non-compliance with those guarantees in ss 236 or 267 of the ACL.
19. Because of the conclusion I have reached that Linkara is not a 'consumer', I propose to be brief in my consideration of the balance of the parties' submissions about the action.

Was there a non-compliance with any of the consumer guarantees?

Diligence guarantee

1. For the purposes of 60 of the ACL, on the predicate that Telstra was to supply those services with due care and skill, Linkara would still need to objectively demonstrate how, in what way, Telstra breached the standard. Perhaps because of the way that Linkara's claim (confined to a common law action for breach of contract) has been put, no attention was given to how Telstra fell short of various matters in section 5B of the Civil Liability Act 2002 (NSW) which are (by reason of s 80 of the Judiciary Act 1903 (Cth)) picked up and applied to s 60 of the ACL. [39] Without proof of breach, however, any action for non-compliance with s 60 would fail.
2. The plaintiff relies, in effect on res ipsa loquitur [40] reasoning, that because only half the service was operational, it must not have been adequately tested beforehand and therefore, there was an omission in care and skill. There are cases where the maxim of res ipsa loquitur apply, but they are usually of a confined nature, where the occurrence falls outside of the scope of ordinary experience of a lay person. [41] The reasons for a telecommunications failure do not fall into such category and I am not prepared to draw the inference contended for.
3. It is unnecessary to further address the submissions on causation and loss that would follow any finding of a non-compliance with that particular guarantee.

Purpose (result) guarantee

1. For the purposes of 61 of the ACL, Telstra submitted that, at its highest, the purpose (or result) made known by Linkara was that it wanted an ISDN group hunt feature facility. I regard that as being too narrow a description. Whilst it is true that there is dearth of evidence as to pre-contractual communications between Telstra and Linkara, it was at least implicitly known by Telstra that Linkara required four fully functioning lines within the ISDN service for business purposes. The Service Schedule 1 was titled 'Business' Premium voice and General Terms for Small Business were incorporated.
2. Telstra did not argue that if the purpose guarantee in s 61 applied it was not complied with. It did not refer to s 61(3). Nor did it suggest that any of the circumstances in s 267(1)(c) applied. Accordingly, if I am wrong that Linkara was not a consumer, I would have found that, consistently with its admitted breach of the contract, Telstra did not comply with the purpose guarantee or the result guarantee.

Remedies for non-compliance with the purpose guarantee

1. Insofar as the purpose guarantee was concerned, Telstra mainly focussed its argument on remedies for non-compliance. Its primary argument was that, in the circumstances, Linkara was limited to the remedies set out in s 267(2). The premise was that the failure to comply with the purpose guarantee could be (and was) remedied and was not a 'major failure' (as that expression is defined in s 268). Secondarily, Telstra made submissions about the scope of recovery for compensation or damage under s 267(3)(b) and (4).
2. In Mr Karathanassis' affidavit in reply [42] , he deposed that the problem with the configuration was 'corrected' on 2 November 2016 (paragraph 12). Telstra's internal records indicated that a complaint or some sort was first notified to it on 23 April 2015. In his letter to the District Court, Mr Karathanassis wrote (at point 3) that he had only 'formally' contacted Telstra regarding issues on 25 October 2016, but said that there had been earlier communications. Telstra accepts, in particular, an issue with the ISDN service being raised by or Linkara's behalf on 5 or 6 October 2016. Although Mr Karathanassis went on to write that he continued to experience issues through to 3 November 2017, taking into account what he said in his affidavit in reply, it appears that those issues concerned matters unrelated to Telstra's admitted breach. In the circumstances I find that the non-compliance with the purpose and result guarantees was remedied by 2 November 2016. Such finding does not preclude Linkara from remedies under s 267(3) (and 267(4)) if the failure to comply was "major" (s 267(2) and (3)). In my view, that was still a significant period of time from the time when the problem was identified. I take into account Mr Wheeler's evidence about what Telstra characterised as a minimal impact of the 'reduced' Hunt Group Feature Capacity. Nevertheless, I accept Mr Karathanassis' evidence - not challenged in the hearing - at paragraph 7 of his affidavit in reply that would likely have occasioned substantial disruption for an acquirer of the services utilising them for business purposes. From the time it was notified of the problem, the defect was not remedied easily and within a reasonable time to make the service fit for purpose. I find that non-compliance with the purpose guarantee would have been regarded as constituting a major failure within the meaning of s 268(1)(b) of the ACL.
3. This last finding might have opened the door to potential recovery to rights under s 267(3)(b) and, potentially, s 267(4) of the ACL. Awards under s 267(3)(b) are designed (where, as here the service is supplied under contract) to provide the promisee with the difference between the value of what was promised and the value of what was received [43] . As Telstra acknowledged in its submissions, the measure of the right of compensation in s 267(3)(b) is the difference between the price paid for the services and the reduced value [44] . Telstra's calculations for the loss of value started with the price paid ($47,259.04). Taking away the usage charges ($2,214.77) from the total charges for the line which was affected by the reduced capacity ($9,989.96) calculated by Mr Wheeler (whose calculations in this particular respect were not challenged by Mr Karathanassis in his affidavit in reply nor challenged at the hearing) yielded a loss of value of $7,775.19. I accept the methodology and quantum for calculation of the action under s 267(3)(b). If Linkara otherwise qualified as a consumer, and subject to further consideration of the limitation in liability Telstra relies upon, it would have been entitled to receive compensation for the sum of $7,775.19 for the non-compliance with the purpose guarantee.
4. Linkara also claims damages under s 267(4) for loss or damage that was 'reasonably foreseeable' from the failure to comply with the guarantees. Of the kinds of loss and damage arising from the evidence (save for the loss of value from the reduced service, under s 267(3)(b), which also reflects the overpayment for services in the action in contract) the loss or damage identified and accepted was the wasted time and effort Linkara incurred in responding to the problem. When considering this head of loss in the contract count, I rejected Mr Karathanassis' attempt to quantify this loss. In substance, this is because the loss is a form of 'non-economic' loss.
5. As the Scenic Tours litigation recognises, non-economic loss can sound in an award of damages under s 267(4), however under the present state of authority, recovery of damages under that head is essentially assimilated to what is recoverable in contract [45] . As explained earlier in these reasons in the treatment of the claim for damages for wasted exertion in contract, the suggested loss would not be recoverable. This would be reason enough to reject the claim under s 267(4) in relation to Linkara's complaint about wasted time and effort in dealing with Telstra itself to address the problem. But, to the extent the claim is centred upon wasted exertions arising from Linkara's business dealings with actual or future clients of other companies within the Linkara Group, I would be inclined to think that under the test of reasonable foresight in s 267(4) (which test might arguably be considered to be less strict than the contractual measure of remoteness founded on the second limb of the rule in Hadley v Baxendale [46] ), absent proof of Telstra's awareness of the dealings of other entities within the Linkara Group, this test would not be satisfied. This is because, adopting the language of Edelman J in Scenic Tours at [66], (consequential) loss of that kind would not fall "within the boundaries of legal responsibility". In this context, legal responsibility would arise from obligations voluntarily agreed to or (at least) assumed. There is nothing to indicate Telstra's assumption of responsibility for losses in the form of exertion by Linkara at the behest of the business interests of other companies in the Linkara Group.

Time guarantee

1. For the purpose of s 62 of the ACL, the contract made provision for the time for the supply of the services. Mr Karathanassis argues that Telstra failed to provide the agreed service for 95 months from 8 December 2008 until the fault was corrected on 2 November 2006. It could not be said, so the argument ran, that the service was supplied within a reasonable time.
2. This argument conflates the provision of a defective service with the failure to provide a service at all. It is only the latter concern that is dealt with by s 62. If Mr Karathanassis' argument was right, section 60 (and probably also s 61) would have little work to do as liability would arise under s 62. I am therefore unable to accept the plaintiff's argument.
3. Mr Karathanassis referred to provisions of the Telecommunications (Customer Service Guarantee) Standard 2011 Schedule 2 Part 2 (204). But the connection between that standard and the content of s 62 of the ACL (and remedies associated with its non-compliance) was not shown and to the extent that the plaintiff seeks to draw support from that standard, it makes a claim which exceeds the grant of leave to the plaintiff permitted during the hearing.
4. I find that this guarantee has no practical application to the circumstances.

Loss or damage

1. Linkara's supplementary submissions clarify that the quantum of any claim under the ACL is the same as the quantum of its claim for breach of contract. So too, the heads of loss or damages under the ACL action are the same as those considered in the contract claim.
2. I will now address two remaining points. First, there is a question of the applicable limitations period for remedies under ss 236 or 267. Secondly, there is a question about the application of the exclusion or limitation clauses considered above in connection with the action in contract.

Limitations period

1. The consumer guarantees arise under Part 3.2 of the ACL. By s 236(1), a right of action for damages lies for contravention of provisions (including ss 60, 61 and 62) which fall within Chapter 3. But by reason of 236(2) of the ACL, the limitation period for an action under s 236(1) to recover damages for contravention of the consumer guarantees is 6 years after the day on which the cause of action that relates to the conduct accrued.
2. Linkara submits that ss 236(1) and 236(2) have independent application so that it is a matter for discretion for the Court whether a time bar applies to an application for damages brought under s 236(1) of the ACL. I do not accept that submission. It is contrary to a basic tenet of statutory construction that the meaning of provisions have to be read with reference to other provisions in the same instrument. It is plainly the intention that the time bar in s 236(2) is applicable to applications for damages under s 236(1). Further Linkara's point about the word "may" conferring upon a discretion is misconceived. Section 236(2) certainly recognises an entitlement. But it is an entitlement in a claimant to bring an action for damages (for contravention of the relevant statutory provisions causing loss or damage) within a 6 year period. The provision does not confer any discretion upon the Court to extend the limitation period.
3. In my view, though it need not be a matter resolved in this case, there is much to be said for the view that whether the action is brought under s 236, the action accrues when damage has been suffered, rather than the date that the consumer guarantee has been contravened. This follows from the circumstance that it is the sustaining of loss or damage (caused by the contravention) that completes the statutory cause of action [47] . There may be nice questions, as there are in analogous claims for damages for the common law action of negligence, as to when time begins to run in the case of latent or non-discoverable damage. Telstra argues that the limitation period would preclude losses after 6 October 2014, but that is premised upon damage being discoverable before then.
4. There is no express limitation period for an action under s 267 of the ACL. It may be surprising that a consumer may have a limitless opportunity to bring an action for compensation or damages under s 267 whereas it had a 6-year limitation period under s 236. It may be that this is a product of legislative inadvertence. At any rate, Telstra did not invoke any time bar limiting Linkara from bringing a claim for relief under s 267(3)(b) or 267(4).

Limitation clause

1. Section 64 of the ACL generally avoids exclusion and limitation clauses in relation to liability in contracts triggered from a non-compliance with the consumer guarantees. Telstra acknowledges that it cannot, and insisted that it did not, purport to exclude liability for any non-compliance with consumer guarantees in the contracts. In this way, whilst it applied to limit liability under contract, Telstra accepts that the limitation in cl 5.3, confining its liability to an aggregate amount "to the total amount payable to us under this Agreement in respect of the first year of the Term" is inapplicable to any liability which occurred under the ACL.
2. However, s 64A(2) of the ACL enables a supplier to limit liability for non-compliance with the guarantees to (a) the supplying of the services again; or (b) the payment of the cost of having the services supplied again. This, in substance, is what cl 5.4 of the corporate services agreement (read with cl 9.3 of the general terms for small business) provides for. As Telstra correctly submitted, prior to its supplementary submissions supplied after the close of hearing, Linkara had not suggested, nor attempted to prove, that this clause is not fair or reasonable [48] .

Linkara's belated invocation of ss 64A(3) and (4) of the ACL

1. However, in its supplementary submissions, the plaintiff sought to argue that the operation of s cl 5.4 (facilitated by s 64A(2)) is, in the circumstances ousted by s 64A(3), by reference to the considerations in s 64A(4). In effect, Linkara argued that cl 5.4 should be avoided.
2. This was a large submission. To reiterate, the Court granted the plaintiff leave to add an action under the ACL after Mr Karathanassis had indicated that the plaintiff sought to rely upon ss 60, 61, 62, 64, 236, 237 and 243 of the ACL. He did not mention s 64A (T 14). The Court made it plain that it would not permit the plaintiff to argue that there were unfair terms in the contract (T 16-17). I had in contemplation, in particular the provisions of Part 2.3 of the ACL. The reason was that if argument about unfair terms was permitted, the trial would be directed by a wholly new path of evidentiary inquiry. It was made apparent that the Court's intention was to permit amendments only insofar as they did not involve reliance upon evidence not already before the Court at the hearing. However, the gist of the plaintiff's submission, with reference to ss 64A(3) and (4) substantially involves the contention that cll 5.3 and 5.4 of the Corporate Services Agreement are 'unfair' (as well as being "not reasonable"). Canvassing the plaintiff's submission is the very kind of thing that the Court was astute to avoid. It would be (procedurally) unfair for Telstra to meet such an argument without the opportunity of relying upon evidence to establish the fairness or reasonableness of those terms. But in circumstances where I have concluded that the plaintiff is not a consumer, in my view, it would be inappropriate to do so.
3. As it happens, paragraphs 39 to 41 in Linkara's supplementary submissions do not go beyond bare assertions and then only from the putative consumer's perspective. Telstra might, for example, have wanted to adduce evidence to prove the availability of equivalent services (s 64A(4)(a)), or whether Linkara had the opportunity to acquire the services under a contract not containing cll 5.3 or 5.4 (s 64A(4)(b)) and the extent of Linkara's evidence of those terms (s 64A(4)(c)). That would necessarily require time for consideration and inquiry and, potentially, could lead to the prospect of the parties' applying to have their cases re-opened. But I do not propose to engage with this part of the plaintiff's submissions for the reasons I have mentioned. Accordingly, I am not prepared to determine that cll 5.3 and 5.4 are not avoided because of their inefficacy arising from s 64A(3) and (4) of the ACL.
4. For the same procedural reason, the Court is not willing to countenance the plaintiff's argument regarding avoidance of the limitation clause under s 243 of the ACL.
5. That being so, Telstra argues that the cost payable for providing the affected the ISDN hunt group services, earlier identified as being in the amount of $7,775.19, represents the maximum recoverable under cl 5.4 of the Corporate Services Agreement. I agree with Telstra's submission that recovery under this provision is in the aggregate of all losses flowing from the non-compliance with the purpose guarantee.
6. That effectively means that if a right to compensation arose under s 267(3)(b) because of a non-compliance with the purpose and result guarantees, Telstra's liability would have been limited to the sum of $7,775.19.

Telstra's evidence

1. Clause 3.1 of the Corporate Services Agreement provided that in consideration for its supply of services, the plaintiff agreed to pay the charges set out in the Agreement.
2. At paragraph 16 of Mr Wheeler's affidavit, the deponent stated that he had reviewed Telstra's 'FLEXCAB' system to obtain invoice document numbers. At annexure D to his affidavit the bills invoiced to the cross-defendant in the period from December 2006 to February 2022 were identified.
3. At paragraph 33 of his affidavit, Mr Wheeler set out the invoices to the cross-defendant in the period from 12 April 2019 to 12 September 2019. Reminder letters followed. Then on 9 October 2019, Telstra issued an invoice for $1,973.12, which sum represented the accumulation of all charges in relation to these invoices.
4. By June 2020, the plaintiff had to its account outstanding charges in the sum of $3,691.26.
5. According to Mr Wheeler, two further developments occurred. First, the account received a credit ($2,122.35) following a backdating of the disconnection date. Second, between August 2020 and November 2020 additional charges accrued ($270).
6. This left the balance claimed of $1,838.91.

The cross-defendant's evidence

1. At paragraph 50 of Mr Karathanassis' first affidavit, the cross-claim was addressed. He said that the plaintiff continued to have on-going service issues and overcharging, as evidenced by his assertions contained in the letter of 14 December 2020.
2. Mr Karathanassis submitted nothing, specifically, about the cross-claim in his affidavit in reply. Nor did he say anything in the written outline of opening submissions.
3. Nevertheless, during the course of closing verbal argument, Mr Karathanassis referred to a document, being a Telstra account dated 9 December 2020. The document had not previously been referred to, in his pleadings or in his evidence and Counsel for Telstra objected to the cross-defendant having leave to re-open to tender it. The document showed an account balance, as at 24 December 2020 of $58.67.
4. Eventually, I allowed its tender [49] on condition that Telstra was able to rely upon its Counsel's verbal explanation (in anticipation of the document being admitted), being effectively that a credit was made to the account for reasons unrelated to the proceeding, as a matter of goodwill. [50] In effect, the credit did not discharge the debt.

Consideration

1. Mr Karathanassis did not previously allude to Exhibit A as constituting a defence to the cross-claim. Instead, by design or by effect, he ambushed Telstra with a document at the closing stages of the hearing.
2. I do not accept that the document has the effect for which Mr Karathanassis contends, which was simply a statement from the Bar Table and which, in my view, amounted to a recent invention.
3. I accept the cross-claim for the amount $1,838.91 claimed. I note that no claim was advanced for interest.

Summary and orders

1. In summary, I have found that: 1. the plaintiff succeeds with its claim for damages to breach of contract, but that its damages are limited to the sum of $890.90 (plus interest); 2. the plaintiff is not a 'consumer' within the meaning of the Australian Consumer Law, but if that finding is wrong, I provisionally would have found that Telstra did not comply with the consumer guarantees in s 61 of the ACL, and was liable to pay compensation under s 267(3)(b) in the sum of $7,775.19. 3. the cross-claimant has made out its claim for damages on the cross-claim for the sum of $1,838.91.
2. I direct the defendant to bring in short minutes of order to give effect to these reasons within 7 days. This should occur following consultation with Mr Karathanassis.
3. In addition, the defendant indicated that it wished to be heard on the issue of costs. Within the 7-day period it should serve a short outline of written submissions (not exceeding 5 pages, excluding material attachments) in support of its position on costs or any disputed order disposing of the proceeding.
4. Within a further 3 days, if the plaintiff wishes to contend that an alternative costs order should be made or disputes any other part of the short minutes served on it by the defendant, it should serve on the defendant a short outline of submissions (not exceeding 5 pages, excluding attachments). Copies of submissions should be emailed to my Associate contemporaneously with service.
5. Absent any contrary indication, further disputes will be determined on the papers.

Endnotes

1. Kirby v Sanderson (2002) 54 NSWLR 135 per Hodgson JA (Mason P and Handley JA agreeing) at [20]-[21]
2. Initially, Ms Janine Johnson purported to appear as a 'friend'. It soon emerged that she was not a legal practitioner and the Court determined that she should not have leave to appear for the plaintiff
3. Before the hearing commenced, I arranged for a statement of guiding principles (sourced from Re F (2000) 161 FLR 189) as to the extent of assistance the Court can render to unrepresented litigants be sent to the parties, which was MFI 1.
4. It appeared at pages 517-521 of the Joint Court Book
5. Uniform Civil Procedure Rules 2005 (NSW), r 6.24
6. T 39 - 41.
7. These two entries (both within Annexure J to the Wheeler affidavit) appeared at pages 462 and 486 of the Joint Court Book.
8. These entries appeared on pages 470 - 472 of the Joint Court Book
9. This was the USB that was tendered. Hard copies of Annexures D, H & I to Mr Wheeler's affidavit were supplied to the Court after the close of hearing.
10. Counsel for the defendant identified 19.
11. Placer (Granny Smith) Pty Ltd v Theiss Contractors Pty Ltd (2003) 196 ALR 257 per Hayne J at [37]
12. Baltic Shipping Co v Dillon (1993) 176 CLR 344 per Mason CJ (Toohey and Gaudron JJ agreeing) at 362-363 ("Baltic Shipping")
13. This list was restated by Edelman J in Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326 ("Scenic Tours") at [68]
14. Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270 ("Scenic Tours (No.4)") at [93]
15. Walker v Winborne (1976) 137 CLR 1
16. Gacic v John Fairfax Publications [2005] NSWSC 1210 at [29]-[42]
17. Defamation Act 2005 (NSW), s 9(1)
18. Castle Constructions Pty Ltd v Fekala Pty Ltd (2006) 65 NSWLR 648 per Mason P (Beazley JA agreeing) at [24]
19. See Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 93-97, 118-126; Tabet v Gett (2010) 240 CLR 537 per Gummow ACJ at [47]-[49]
20. Sellers v Adelaide Petroleum NL (1994) 179 CLR 332 at 355, 367; Feletti v Koatoulas Pty Ltd [2000] NSWCA 59 at [27]; Gore v Montague Mining Pty Ltd [2001] ANZ Conv R 8 at [37] - [70].
21. Hawkins v Clayton (1986) 5 NSWLR 109 at 115B-C, 122B (appeal allowed but not on this ground in Hawkins v Clayton (1988) 164 CLR 539) Sheldon v McBeath (1993) Aust Torts Rep 81-209 per Handley JA
22. Larking v Great Western (Nepean) Gravel Ltd (in liq) (1940) 64 CLR 221 per Dixon J at 236; Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 at 349
23. Phillips-Higgins v Harper [1954] 1 QB 411 per Pearson J at 419 (an appeal from the decision being dismissed: [1954] 2 All ER 51]. Phillips-Higgins was applied, for example, in Hillebrand v Council of the City of Penrith [2000] NSWSC 1058, Sinclair v Registrar-General [2010] NSWSC 173 at [33]-[39], and Renshaw v NSW Lotteries Corporation [2018] NSWSC 1954 at [155]-[156] and [202]-[203]
24. G Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis electronic version) [16.11], ("Dal Pont") fn 30
25. Self-evidently, Mr Wheeler's calculations could not be broken down any more narrowly to commence from 6 December 2014
26. Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 per Lord Diplock at 849-850
27. Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 510
28. (1854) 156 ER at 151
29. Noting that the two limbs represent the statement of a single principle: European Bank v Robb Evans of Robb Evans and Associates (2010) 240 CLR 432 at [13]
30. J Carter, "Exclusion of Liability for Consequential Loss" (2009) 25 JCL 118
31. The Amended Statement of Claim was filed on 14 December 2021
32. T 53.5
33. The monetary threshold of $40,000 has since been increased to $100,000 by reason of the Treasury Laws Amendment (Acquisition as Consumer - Financial Thresholds) Regulations 2020 (which inserted rule 77A into the Competition and Consumer Regulations 2010 (Cth)), however, r 100 of the Competition and Consumer Regulations provides that the revised threshold only applies to services acquired on or after the commencement date of the regulations, which was 1 July 2021.
34. A fact which Telstra admitted: paragraph 3(a)-(b) of its Amended Defence. See also Mr Wheeler's evidence at paragraph 17 of his affidavit. Further, in the contract claim, Telstra sought to limit its liability to what was payable in the 2008-9 period.
35. The corporate services agreement entered into in 2008 was not in evidence. Neither party indicated that there were any material differences
36. Seeley International Pty Ltd v Newtronics Pty Ltd (2002) Aust Contracts Rep 90-142 at [164]
37. Jefferson Ford Pty Ltd v Ford Motor Coy (2008) 167 FCR 372 per Rares J at [90]-[102] in relation to the analogous provision of s 51AC of the former Trade Practices Act 1974 (Cth).
38. The exclusion was in s 51AC(9). The relief covered under s 51AC of the Trade Practices Act 1974 (Cth) is now to be found in s 21 of the ACL; noting that s 51AC of the Trade Practices Act had been directed only to business consumers
39. Moore v Scenic Tours (No.2) [2017] NSWSC 733 ("Scenic Tours No.2") at [425]-[432].
40. 'The thing speaks for itself'. That is, the inference of breach is drawn from the circumstances of an accident occurring and an injury sustained: see Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
41. Schellenberg per Gleeson CJ and McHugh J at [41]-[42], approvingly citing Piening v Wanless (1968) 117 CLR 498 per Barwick CJ at 508.
42. Also paragraph 13 of Mr Karathanassis' first affidavit.
43. Scenic Tours per Edelman J (in his Honour's concurrence) at [64]
44. Scenic Tours No.4 at [43]
45. Scenic Tours per Edelman J at [66]-[67]; Scenic Tours (No.4) at [44-46].
46. As to the differences between the tortious and contractual tests for remoteness, see Baltic Shipping per Mason CJ at 364.
47. Dal Pont, supra, [6.7]
48. Section 64A(3) of the ACL
49. It became Exhibit A, T 79-80.
50. T 78-79.

Amendments 16 June 2022 - 1. Amendment in catchwords 2. Amendment made at paragraph [109] 3. Amendment made at paragraph [133] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2022