Case: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Outcome: cited
his examination in chief on this topic, Mr Donnellan said that Allphones had asked Optus to ensure that it was allowed to offer different incentives to different franchisees in order to promote performance, in the hope that the bonus payments would continue. He said that Optus had agreed to pay the $150 bonuses as per connection 'on a budget basis', meaning that Allphones had to modify its marketing, order stock and ensure that franchisees knew that they could make money over the three month period. He was not asked what the supposed conditions were for the payment of this commission to franchisees. His vague and general assertions do not fit with Mr Lim's insistence in his email of 3 May 2004 that if the payment of the $150 commission appeared on the stores' RCTIs, Allphones would expect the same money to be paid to it in full. The most natural inference to draw (as I do) from Mr Donnellan's failure to give any evidence on this aspect of the topic in chief, is that any such evidence as he might have given would have exposed facts unfavourable to Allphones' case: CEPU 162 FCR at 525 [230]; Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA. Hoy Mobile called no evidence of any actual lost sales. However, it is difficult to establish a precise basis for assessment of the value of the loss of a chance to earn revenue resulting from the erroneous diversion of 138000 calls to the Randwick store. Mr Hoy did not give evidence about what sales the Eastgardens store achieved from or as a result of telephone inquiries. I infer that he could give no evidence helpful to Hoy Mobile's case: Ferrcom 22 NSWLR at 418. Significantly, Allphones considered the 138000 as commercially useful in generating sales opportunities. Indeed, at the franchisee forum on 6 October 2006, where Mrs Hoy first discussed with Mr Pompeii the problems that the Eastgardens store was experiencing with the 138000 number, he said that the number was an important tool for sales generation. Mr Pompeii showed Ms Hoy a number of Zintel documents on his laptop computer. These showed that the Eastgardens store had five calls diverted to it by the 138000 number in March 2006, but only one in September that year. Mr Hoy had said that he had noticed a drop from 10 calls per day to only one or two. While I am not satisfied that the number of calls at the Eastgardens store was as high as 10 call per day before the drop, I infer that once Allphones began publicising the 138000 number, customers began calling it rather than the individual stores' phone numbers. As that happened, the number of calls that the Eastgardens store received fell. Mr Pompeii's Zintel files recorded only the calls diverted to the Eastgardens store, not those which were generated in the suburb of Eastgardens, or the ones made directly to Hoy Mobile's phone number. And, as Mr Hoy's experience showed, even calls from Hoy Mobile's store itself were diverted to the Randwick store. Zintel had programmed the 138000 number to divert calls from the Rose Bay, Vaucluse and Edgecliff telephone exchanges to the Eastgardens store. The areas served by those exchanges were well away from Eastgardens and, indeed, Randwick was closer to them. Only in February 2007 did Allphones advise Zintel that those areas belonged to the catchment area for the Randwick store, and then it required them to be changed urgently.