Logically it is a big call to claim for Services not performed / loss of profits etc. Without reading the contract Ts&Cs, you are right its all speculation. But to defend the claim, it is obviously an 'interpretation' issue as it's very difficult to argue against a well written contract (and believe me, I've read some lousy contracts written by large corporations where gaping holes exist between Law and Commercial business sense) and generally, Courts do not award to opportunists based on sloppy contracts.
Also of the contracts I have read (values up to USD$500m), I have yet to read a clause on 'ability to pay', its all about late payment penalties, a charge over the goods until paid (Title), or progressive payments to minimise risks. If you are uncertain about a cusomers ability to pay, it is your responsibility to determine their credit risk at that time (and reviewed with frquency depending on the nature of the business). With this in mind a claim now does look a bit opportunist.
OneTel didnt send out a Statement of Claim to suppliers that turned the tap off when the risks became to high. And those supply contracts were much bigger that this one.
And you are right, an American Lawyer would try and make something of this (and aggresively too).
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