AGL Sales Pty Limited v Diamond Venues Group Pty Ltd

Case •

[2024] NSWDC 397

•

02 September 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: AGL Sales Pty Limited v Diamond Venues Group Pty Ltd [2024] NSWDC 397
Hearing dates: 27 August 2024
Date of orders: 2 September 2024
Decision date: 02 September 2024
Jurisdiction:Civil
Before: Andronos SC DCJ
Decision:

(1)   Judgment for the plaintiff in the sum of $317,609.29, inclusive of interest.

(2)   Direct the parties to liaise, seek to agree on an order for costs, and notify my Associate of such agreement, by 5pm on 9 September 2024.

(3)   In the event that the parties have not agreed on an order with respect to costs, the parties are to provide to my associate, by 5pm on 9 September 2024, a range of mutually available dates for a hearing on the question of costs, preferably on a Friday.

Catchwords:

COMMERCE — National Energy Retail Law – Where no appropriate agreement for supply of energy

EVIDENCE - balance of probabilities – civil proceedings

Legislation Cited:

Business Names Registration Act 2011 (Cth), s 18

Civil Procedure Act 2005 (NSW), s 100

Evidence Act 1995 (NSW), s 63, s 67, s 118, s 119, s 122

National Energy Retail Law (Adoption) Regulation 2020 (NSW), r 4

National Energy Retail Law (NSW), s 2, s 5, s 64

Cases Cited:

Doney v R (1990) 171 CLR 207

Hadden v Inline Partners Pty Ltd [2024] NSWCA 42

Rounde v Helwani [2020] NSWCA 310

United Group Resources Pty Ltd v Calabro (No5) (2011) 198 FCR 514

Category:Principal judgment
Parties: AGL Sales Pty Limited (plaintiff)
Diamond Venues Group Pty Ltd (defendant)
Representation:

Counsel:
Mr A J Munro (plaintiff)
Mr J M Kadar (defendant)

Solicitors:
Mason Black + Mendelsons Lawyers (plaintiff)
Jordan Djundja Lawyers (defendant)
File Number(s): 2023/00087055
Publication restriction: Nil

JUDGMENT

  1. The plaintiff, AGL Sales Pty Limited (AGL), supplied electricity to premises at 21 Canterbury Road, Punchbowl (the supply premises) from 10 September 2021 to 22 May 2024 (the supply period). There was no written agreement with the customer. AGL says that the defendant, Diamond Venues Group Pty Ltd, was the customer and, pursuant to invoices rendered to it by AGL for the supply period, the defendant is indebted to it in the sum of $311,358.30. In the alternative to its claim on the invoices, AGL contends that it is entitled to recover on a quantum meruit or quantum valebat basis.

  2. The premises are a wedding reception and function venue. The defendant denies that it was the customer, that it ever occupied the premises or that it used or consumed the electricity the subject of the invoices. The issue before the Court, therefore, is whether AGL has established that the defendant was the user or consumer of the electricity for the supply period.

  3. AGL relies on affidavits of Angela Limnios, Courtney Muir and Fareed Soudagar. Each was cross-examined and each gave their evidence honestly and conscientiously. No submission adverse to the credit of any of them was made.

  4. The defendant did not rely on any affidavit evidence. It made an application under s 63(2) of the Evidence Act 1995 (NSW) to rely on two affidavits by its director, Christopher Drivas, sworn in these proceedings. Mr Drivas was not available for cross-examination, it was said, because he is currently undergoing treatment for bowel cancer.

  5. The Court is sympathetic to Mr Drivas in his current predicament and wishes him a speedy and complete recovery. However, protection of the present hearing date had been one of the bases relied on by the defendant in resisting an amendment application heard by Dicker DCJ on 21 August 2024. Further, Mr Drivas was not undergoing any treatment on the hearing day but, it was stated from the bar table, had an appointment the following day with a specialist. This did not establish that he was unavailable within the meaning of s 63 of the Evidence Act. Further, I asked counsel whether the defendant wished to seek an adjournment of the proceedings part-heard to enable Mr Drivas to attend and indicated that I would be sympathetic to such an application, however, this was not taken up. Finally, as Mr Munro, counsel for the plaintiff, pointed out, the notice provisions under s 67 of the Evidence Act had not been complied with and there was no affidavit in support of the application.

  6. In the circumstances, therefore, I did not accede to the s 63 application in relation to Mr Drivas’s affidavit evidence.

Approach to evidence

  1. In short, AGL’s case is that it commenced supplying electricity to the supply premises on 10 September 2021 and continued to supply it to those premises until 24 May 2024. It rendered monthly invoices, although it appears that invoices for the period September 2021 to August 2022, were not delivered to the defendant until they were reissued in its name and sent to its registered office at 61 Kingsway, Kingsgrove NSW 2208 (the registered office) on 28 September 2022.

  2. The monthly invoices for the period September 2021 to August 2022 had been addressed to “Dear Customer” at the address of “Canterbury Road Punchbowl NSW 2196” without a street number. This was, AGL says, because it had been investigating the identity of the occupier of the supply premises or the user of the electricity between about January and August 2022. It seems unlikely that the “Dear Customer” invoices were ever delivered to the defendant.

  3. From 28 September 2022 until May 2024, invoices were addressed to the defendant, by name, and sent to the registered office. Supply was terminated on 24 May 2024.

  4. In its verified defence and in inter partes correspondence, the defendant says that it never occupied the supply premises and that, when AGL’s investigators attended the premises and met with employees of the defendant, they were only there for the purpose of preparing to take possession of the supply premises. The defendant denies that it used or consumed the electricity.

  5. AGL’s case as to the defendant’s use of the electricity and occupancy of the supply premises is wholly dependent on circumstantial evidence.

  6. Circumstantial evidence is evidence which, although not directly establishing the existence or non-existence of the fact required to be proved, is admissible in order to enable the Court to decide whether that fact did or did not exist. It proves, or tends to prove, a fact or set of facts from which the fact to be proved may be inferred: Doney v R (1990) 171 CLR 207 at 541.

  7. In assessing AGL’s evidence in these proceedings, I have taken the approach summarised in United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 at [71] as follows:

“(a) Proof of any fact on the balance of probabilities may be established by circumstantial evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at [90]. That includes proof of primary or intermediate facts from which the court may infer a further fact: Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 579. The primary facts can themselves be the product of inference from other facts.

(b) A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible, and is not required: Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141. All that is necessary is that ‘circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought’: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.

(c) For the purpose of considering whether the probabilities are satisfied in a case based on circumstantial evidence, the Court must consider ;the accumulation of the evidence;: Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535. It is appropriate; not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence; by considering ‘the weight which is to be given to the united force of all the circumstances put together’: Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279.

(d) In a circumstantial case, the Court is often able to draw an inference from the combination of primary facts, although none of those facts in isolation would have supported the inference: Chamberlain at 536. The true picture will be derived from the accumulation of detail; often best appreciated by standing back and viewing it from a distance — making an informed, considered, qualitative appreciation of the whole; recognising that the overall effect is not necessarily the same as the sum total of the individual details. The analogy is of ‘strands in a cable’ rather than of ‘links in a chain’. Proof does not depend on the integrity of each link: Seltsam at [90] but on the combined strength of the multifarious strands.”

The National Energy Retail Law (NSW)

  1. AGL was the “financially responsible retailer” in respect of the supply of electricity to the supply premises within the meaning of s 2 of the National Energy Retail Law (NSW) (the NERL). There is no dispute that AGL and the user of electricity at the supply premises did not enter into any express agreement or arrangement for the supply of electricity during the supply period.

  2. AGL relies on the provisions of the NERL to recover, as a debt, the amount that it considers would have been charged had such an arrangement been in place. For the relevant provisions to apply, AGL must first establish that the user of electricity was a “large customer”. Under s 5(3) of the NERL, a “large customer” is “a business customer who consumes energy at business premises at or above the upper consumption threshold”. The upper consumption threshold was set by r 4 of the National Energy Retail Law (Adoption) Regulation 2020 (NSW) as 100MWh per year for consumers of electricity.

  3. If AGL establishes that the user was a “large customer”, the NERL provides a mechanism for it, as the retailer, to recover an amount for the energy provided by it.

  4. Section 64 of the NERL relevantly provides:

“64   Large customer consuming energy at premises

If a large customer consumes energy at premises without an appropriate arrangement between the customer and a retailer for payment of charges for the energy—

(a)  the financially responsible retailer is entitled to charge the customer an amount for the energy at the rate the retailer considers would have been charged had such an appropriate arrangement been in place; and

(b)  that amount, to the extent it is not paid to the retailer, is a debt owing by the customer to the retailer and may be recovered in a court of competent jurisdiction.”

Was the consumer of electricity at the supply premises a large customer within the meaning of the NERL?

  1. Each of the invoices issued by AGL in respect of the supply premises for the period 10 September 2021 to 22 May 2024 was in evidence. The invoices record the usage for each monthly billing period. The usage was:

Period

Usage

10 September 2021 to 30 September 2022

210MWh

1 October 2022 to 30 September 2023

160MWh

1 October 2023 to 22 May 2024

88MWh

  1. I have considered the period 1 October 2023 to 22 May 2024 on a pro rata basis as a little under two-thirds of a year. On that basis, I am comfortably satisfied that the upper consumption threshold of 100MWh per year under the NERL was exceeded by the user of electricity at the supply premises for the whole of the period 10 September 2021 to 22 May 2024.

  2. Accordingly, as the supply premises were business premises, and the user of electricity exceeded the upper consumption threshold, it was a large customer and the provisions of s 64 of the NERL apply.

Has AGL established what it considers would have been charged if an appropriate arrangement been in place?

  1. Each of the invoices in evidence sets out the period of supply, supply address, meter and tariff information, quantity of electricity used (itemised according to peak, shoulder and off-peak use), network charges, renewable energy charges and other charges. No challenge was made to the invoiced amounts.

  2. On the basis of the invoices issued by AGL in respect of the supply period, I am satisfied that those invoices reflect the rate that AGL considered would have been charged had an appropriate arrangement been in place within the meaning of s 64(a) of the NERL.

Whether AGL has established that the defendant was the user of the electricity supplied to the supply address

  1. AGL’s evidence on the question of whether the defendant was the customer approaches the question in two ways. First, it relies on evidence that indicates that the defendant was conducting business from the supply premises. Secondly, it relies on interactions between the defendant, or its employees, and AGL, or its representatives, which evidence the defendant’s occupation and use of the supply premises, or constitute an admission either to that effect or in respect of liability to pay AGL for the use of electricity supplied to the supply premises.

  2. For the reasons set out below, I find that AGL has made good its allegation that the defendant was the customer and is liable for the use of electricity at the supply premises during the supply period.

Whether the defendant conducted a business from the supply premises

  1. The defendant was incorporated on 5 March 2021. The supply premises are owned by Westwood Capital Pty Ltd (Westwood Capital). There is no evidence of any executed lease between Westwood Capital and the defendant. The defendant tendered a letter from its solicitors to the plaintiff’s solicitors dated 16 June 2023, to which was attached a proposed defence and an unsigned lease between Westwood Capital, as lessor, the defendant, as lessee, and Mr Drivas, as guarantor. A title search of the supply premises does not record any lease to any party.

  2. Since 8 September 2021, the defendant has been the registered proprietor of the business name “Diamond Venues Group”, ABN 32 648 467 387. A registered business name is, of course, not a trade mark and does not confer the exclusive right to use that name. However, an entity carrying on a business in other than its own name or a registered business name commits an offence in doing so: s 18 of the Business Names Registration Act 2011 (Cth).

  3. There is no evidence that the defendant licensed the use of the business name to any third party or ever took any steps to restrain its use by any third party. In email correspondence with Mr Con Savell, then a director of the defendant, on 17 June 2022, AGL referred to the use of the business name and ABN, so there can be no doubt that the defendant was aware of such use by no later than that date.

  4. AGL relied on abundant evidence of marketing of wedding and function services from the supplied premises in the name of “Diamond Venues Group” during the supply period. That marketing included social media posts by Diamond Venues Group. It also included social media posts by other users, which tagged Diamond Venues Group or from which it could reasonably be inferred that services were being provided from the supply premises. That evidence included:

  1. The “contact us” page of the website at downloaded in June 2023 and again in February 2024, which invites viewers to initiate contact through an online form and provides the following details:

“DIAMOND VENUES GROUP

ABN 32 648 467 387

21 Canterbury Road, Punchbowl NSW 2196

P 0410 771 299 / 0410 771 944

[email protected]”.

  1. The website as at February 2024, which contained multiple references to the supply premises and extensive, detailed references to the services provided there. The level of detail extended to identifying specific function rooms and sample menus and packages. There was nothing to indicate that the services were not immediately available.

  2. Google searches of “Diamond Venues Group” in April 2022, June 2023 and February 2024, which yielded references to the Diamond Venues Group webpage ( Instagram page (@diamondvenues) and Facebook page. It showed a photo of the supply premises, its address at 21 Canterbury Road, Punchbowl and phone number of 0410 771 944.

  3. In June 2023, nine Google reviews referenced in the Google search. In February 2024, there were 15 reviews. On this basis, I infer that six of the reviews were posted in the intervening period. I also infer that all of those reviews related to services provided during the supply period. This is consistent with both parties’ case, as neither party contends that there was any relationship between the defendant and the supply premises prior to September 2021. Further, the sign outside the supply premises was changed from “Club Punchbowl” to “Diamond” sometime between January and April 2022.

  4. Posts on the Facebook and Instagram pages of “Diamond Venues Group”, downloaded in June 2023 and February 2024, which describe Diamond Venues as a venue for “Weddings – Special Occasions – Corporate Events – Wakes & Memorials”. The address provided, in both cases, was the supply premises. The Facebook page was created on 2 November 2021.

  5. Google Maps searches for the address “21 Canterbury Road Punchbowl” in February 2024, which show a pin with the name “Diamond Venues Group” at the supply address.

  6. During the supply period, a sign reading “Diamond” which was placed outside the supply premises. It was observed by an agent for AGL on 21 April 2022. In later correspondence between the solicitors, this was conceded. Google Maps Street View screenshots, downloaded in June 2023 and February 2024, also show the sign.

  7. Third party social media posts, tagging Diamond Venues Group, which referred to functions scheduled to take place there: a “Winter Festival” organised by “sugarbabiessydney” in June 2023 and a Ramadan Family market organised by “the.ummahcollective” in March 2024. Other third party social media posts referred to work performed at the supply premises – the Instagram page of “evercleangroupsydney”, in a screenshot taken on 9 February 2024, referred to “an epic steam/drycleaning job” at “diamond venues” at Punchbowl. The post referred to “a refreshed and clean space for hosting your upcoming events”. I infer that to be a reference to the supply premises.

  1. Counsel for the defendant submitted that the above evidence is insufficient to establish that any business, at all, was actually being conducted from the supply premises as there was no evidence of any functions actually taking place there. Further, he submitted that, at its highest, the evidence does not establish that occupation of the supply premises and conduct of the Diamond Venues business therefrom for the whole of the supply period. It could only establish occupation and use as at June 2023 and February 2024.

  2. I do not accept either submission.

  3. First, I consider the evidence is more than sufficient to justify the inference that the supply premises were being used for the purpose of hosting wedding, corporate and other social functions during the supply period. In light of the above evidence, it is unnecessary, in my view, to establish this by means of some direct evidence of any particular event having taken place.

  4. Secondly, it is clear on the evidence that that business was conducted under the business name “Diamond Group Venues”, which belonged to the defendant.

  5. Thirdly, there is no evidence, and there was no submission, that there was some other party (identified or not) occupying, conducting the business from, the supply premises using the registered business name of the defendant and using its ABN. There was no registered lease in favour of any third party.

  6. Fourthly, I have taken into account evidence of the communications between the parties and their legal representatives, considered more fully below. Those communications indicate that there was at least an association between the defendant and the supply premises from no later than January 2022. This is not inconsistent with it having used electricity at the supply premises during the supply period.

  1. Finally, I note there was, until November 2022, a complete failure to respond to allegations of occupancy, use and indebtedness in circumstances where it would have been more reasonably probable that the defendant would have answered the claim if it denied liability.

  2. On the whole, I consider that the evidence supports the inference that the defendant either commenced operations from the supply premises, or, at the very least, commenced taking steps at the premises for the purpose of conducting its business from them, in September 2021. Early in the supply period, I consider that the business became fully operational. I am further satisfied that electricity supplied by AGL was actually used, that it was used by the defendant and that it was not used by anyone else.

Communications between AGL and the defendant

  1. Although the above findings are, in my view, sufficient to establish that it was the defendant who used or consumed the electricity supplied by AGL to the supply premises during the supply period, I have also considered the course of communications between the parties and their representatives during the supply period.

  2. Interactions between technicians relied on by AGL and the defendant were recorded in a SAP business-to-business application to which both the third party service provider and AGL staff had access. In my view, they are a reliable record of the interactions which they purport to record.

  3. I have found, relevantly, as follows:

  1. AGL commenced supplying electricity to the supply premises on 10 September 2021 without there being any formal arrangement in place between it and the customer. AGL did not know the customer’s name so issued invoices addressed to “Dear Customer” at the address “Canterbury Road, Punchbowl NSW 2196”. It is unlikely that any invoices were actually delivered to, or received by, the defendant until they were reissued in the defendant’s name and addressed to its registered office in September 2022.

  2. By January 2022, none of the invoices rendered since September 2021 had been paid. AGL conducted at least some of its technical operations through agents and intermediaries. It relied on third party technicians to attend the supply premises to effect disconnections of supply. As no invoice had been paid by January 2022, AGL raised a disconnection request with its local agent, by which the supply of electricity to the supply premises would be disconnected. On about 10 January 2022, as recorded in the SAP application, a technician attended the supply premises and met Elizabeth Wards, an employee of the defendant. Ms Wards told him that “they had taken over the building” and were renovating. She told him that she would ask head office to set up an electricity account. No such account was set up. The disconnection request was not actioned.

  3. On about 17 February 2022, AGL raised another disconnection request in respect of the supply premises. A technician again attended the supply premises and met with “Amelia”, who gave her phone number as 0410 771 299. While the defendant denies that it had an employee named Amelia, the phone number is the same number as appears on the defendant’s website, Facebook page and Instagram account and in Google searches. The technician recorded in the SAP application that disconnection was prevented on that occasion.

  4. On 30 March 2022, a further disconnection request was made, however the technician could not gain access to the supply premises as the gate was locked.

  5. On 21 April 2022, a technician attended the supply premises but could not gain access as the gates were locked. This was the first occasion on which anyone, on behalf of AGL, saw the signage outside the premises which referred to “Diamond”. A field call report prepared the following day also recorded, “On a regular surveillance, every light is on in the building 24/7.”

  6. Mr Humaira Khan, an investigations officer with Probe Group, acting on behalf of AGL, then tried calling Amelia on 0410 771 299. A file note at 10:17am on 12 May 2022 recorded, “Msg on ans machine was ‘Amelia from Diamond group’ which is now evident that Diamond Venue is on site”. At 12:11pm that day, Mr Khan sent an email to Fareed Soudagar, an AGL Dispute and Risk Specialist, in which he reported that the voicemail on that number said, “Hi, this is Amelia from the Diamond Venue Group”. His email continued:

“Also, I would like to add that I have tried calling her in the past as well but it always went to voice mail. Her voice mail message now also includes “Diamond Venue Group” which is a new development.

I think this is a strong lead that can be connected together and we can now be in a position to set up in default contract using the ABN details. If the events are taking place during late afternoons our DNI’s attempts may not benefit us.”

  1. Further disconnection requests were raised by AGL on 18 May 2022 and 28 June 2022, without success. Steps to disconnect remotely through the metering company, Powermetric, were also unsuccessful. It was not until 24 May 2024 that Ausgrid was successful in cutting off the supply of electricity to the supply premises.

  1. Between 30 May 2022 and 23 August 2022, Mr Soudagar sent no less than six emails to Westwood Accountants in relation to payment for the supply of electricity to the supply premises. He did so because a company search of the defendant had revealed that Mr Constantine Savell was then a director of the defendant and Westwood Accountants was his place of business. The communications included the following:

  1. On 30 May 2022, Mr Soudagar spoke to an administrative assistant named “Sheila” and followed up with an email in which he referred to earlier conversations with “Elizabeth”, who had advised that Diamond Group would set up an account with AGL, further conversations with “Amelia” and his unsuccessful attempts to reach her on 0410 771 299. He pointed out that the site was consuming power and that the usage of power was unauthorised. He requested that an electricity account be set up under the correct business name for invoicing and payment. He indicated that once all of the relevant company information was provided, AGL would make contact with a backdated contract as well as a forward dated contract.

  2. Mr Soudagar did not hear back. On 3 June 2022, he sent a further email to Sheila asking for a response as a matter of priority. He still did not hear back and on 6 June 2022, he sent a further email asking for a response from Mr Savell.

  3. On 17 June 2022, Mr Soudagar emailed Mr Savell directly, copied to [email protected]. In this email, he set out the same background and made the same request that had been set out in his 30 May 2022 email to Sheila. Mr Savell did not respond. On 22 June 2022, Mr Soudagar sent a further email to Mr Savell, copied to [email protected], in which he tried to encourage a response by offering a discount on the outstanding amount if an account were opened prior to the end of the financial year. He also indicated that if AGL did not receive a response by 24 June 2022, AGL would set up an electricity account in the name of Diamond Venues Group Pty Ltd, identified also by its ACN and ABN.

  4. Mr Soudagar still did not receive any response. On 23 August 2022, Mr Soudagar sent a further email to Mr Savell, copied to [email protected]. He reiterated both the offer of a discount if an account was opened promptly and, that if he did not receive a response by 25 August 2022, AGL would set up an electricity account in the name of the defendant. He went on to say:

“Electricity has been consumed and must be paid for. It is unfair and unreasonable for one business to profit from another business.

Since this is a LARGE Market NMI, AGL has all rights to backdate this NMI on default rates from 10.09.2021.

Once account has been set up, we will bill you on default rates and if the invoices are unpaid then we will proceed with Legal action.

Awaiting your earliest response.”

  1. Even this email did not elicit a response from Mr Savell.

  2. On 26 August 2022, Michael Fusca, an Energy Sales Executive at AGL, sent Mr Savell an email, copied to [email protected], to which was attached an electrical offer, “to avoid any risk of disconnection”. He also sent the offer to Mr Savell via Docusign, so it could be accepted electronically. Mr Fusca did not receive a response. He sent a follow up on 30 August 2022, but this too received no response.

  3. On 9 September 2022, Mr Soudagar sent an email to Mr Savell, copied to [email protected], in which he referred to the numerous attempts made by AGL to contact the defendant, the failure of the defendant to respond, the expiry of the quotes or offers which had been made, AGL’s intention to proceed to invoice the defendant at default rates and AGL’s intention to commence proceedings if the invoices were not paid by their due dates.

  4. Mr Savell did not respond.

  1. On 28 September 2022, AGL reissued 12 tax invoices, addressed to the defendant by name, at its registered office of 61 Kingsway, Kingsgrove, in the total sum of $116,750.51 for the period 10 September 2021 to 31 August 2022. Thereafter, it issued monthly tax invoices for the period up to 24 May 2024, when supply was finally disconnected. An invoice for September 2022, in the sum of $14,758.67, was issued on 3 October. A reminder was sent on 12 October 2022 in the sum of $131,509.18.

  2. A Notice of Intent to Proceed with Legal Action was sent to the defendant’s registered office on 3 November 2022, identifying the account number as well as the name, phone number and email address of the sender. Demand was made for payment of the sum of $131,509.18, without set-off or deduction, by 7 November 2022.

  3. On 25 November 2022, the defendant finally reacted. On that day, its solicitor sent a letter to AGL at its Sydney GPO Box, not specifying the relevant account number or marked to the attention of the sender of the 3 November Notice of Intent. Indeed, it only referred to the electricity accounts dated 13 October and 24 October 2022, stating that the defendant “has not yet taken possession of the premises” and “has not entered a contract for the supply of electricity”.

  4. Obviously, the 25 November 2022 letter was not seen by anyone with responsibility at AGL for the defendant’s account within the next few weeks. At 2:21pm on 13 December 2022, AGL’s solicitors wrote to the defendant demanding payment of the debt, which was now $151,423.97, given the continued supply of electricity to the supply premises. In a surprising display of double standards, the defendant’s solicitor wrote to AGL Credit, sent by email to AGL’s Commercial Credit Risk Specialist, Ms Alimnios, and AGL’s solicitor, Ms Muir, at 4:31pm that same day, demanding an immediate response to his letter of 25 November 2022, which was attached to his 13 December 2022 letter.

  5. The defendant’s solicitor ought reasonably to have expected his earlier letter would have not been seen by the relevant officer, given his failure to specify an account number or respond to any of the earlier email correspondence sent by AGL to his client. He then sent a letter to Ms Muir the next day complaining about not having received “the courtesy of a response” to his letter of the previous afternoon.

  6. AGL’s solicitors responded on 20 December 2022 and thereafter, the correspondence followed a predictable and not particularly illuminating course. These proceedings were commenced on 16 March 2023.

Findings and inferences on the basis of communications between the parties

  1. The course of communications demonstrates that multiple communications were made by AGL to the defendant throughout 2022 in which it claimed an entitlement to payment for the supply of electricity to the supply premises and that it considered the defendant to be liable. There is no dispute that those communications were received. They were not responded to.

  2. In Rounde v Helwani [2020] NSWCA 310 at [33], approved by Gleeson JA in Hadden v Inline Partners Pty Ltd [2024] NSWCA 42 at [26] (per Gleeson JA, White and Stern JJA agreeing), the Court of Appeal (White JA, Brereton and McCallum JJA agreeing) stated:

“… A failure to respond to a demand for payment may amount to an admission if there are circumstances which render it more reasonably probable that a person who denied liability for the claim would answer the claim than that he would not (L Shaddock & Associates Pty Ltd v Parramatta City Council (No. 1) (1981) 150 CLR 225 per Gibbs CJ at 230; [1981] HCA 59; Thomas v Hollier (1984) 156 CLR 152 per Gibbs CJ at 157; [1984] HCA 35; J D Heydon, Cross on Evidence at 33,435).”

  1. I consider the failure of the defendant to respond to any of the communications by which AGL sought payment and for the defendant to open an account supports an inference that the defendant did not have any answer to the claim made by AGL.

Admissibility of the email of 30 December 2022

  1. The only further issue that arose from the subsequent correspondence concerns an objection, raised by counsel for the defendant, to an email sent by Elizabeth Wards to the solicitors for the defendant on 30 December 2022. That email, together with what appears to be a draft response to AGL’s solicitors’ 20 December 2022 letter, was attached to the defendant’s solicitors’ letter of 12 January 2023. It was exhibited to Ms Muir’s affidavit of 15 February 2024, which was served at or around that time. I provisionally admitted the email so the parties could address on it, subject to further consideration in these reasons. I have decided to revoke the admission of the email and do not rely on it in these reasons.

  2. In the letter of 12 January 2023, the defendant admitted that Elizabeth was an employee of the defendant. It admitted that Elizabeth was present at the supply premises in January 2022 and that she met with the technician sent on behalf of AGL. It admitted that Elizabeth told the technician that she would pass on the name of the technician to other people.

  3. Mr Kadar, for the defendant, submitted that the email was privileged and therefore inadmissible under s 118 (legal advice) and/or s 119 (litigation) of the Evidence Act.

  4. Mr Munro, for AGL, accepted that the email was likely a confidential communication between a lawyer and a client for the dominant purpose of an anticipated Australian proceeding and therefore, within the ambit of s 119. He submitted, however, that any privilege had been waived as the defendant had acted in a way that was inconsistent with the maintenance of the privilege within the meaning of s 122(2). This was both by reason of the email’s voluntary disclosure on 12 January 2023 and by the failure of the defendant to raise any issue of privilege in the six months between receiving Ms Muir’s exhibits, in February 2024, and the day of the hearing.

  5. Mr Kadar submitted that disclosure of the email was plainly inadvertent. He submitted that the failure to raise the privilege claim before the hearing was not a waiver as the time for objections to be raised was the hearing itself.

  6. On the face of the disclosure, it appears to be entirely due to the carelessness of the solicitor for the defendant. The email was not referred to in the 12 January 2023 letter and there does not seem to be any forensic or strategic purpose in its disclosure.

  7. As to the failure to raise the question of admissibility once AGL’s intended reliance on the email was made known to the defendant, s 122(2) operates to permit the presenting of evidence if the party has acted in a way “that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to”, inter alia, in ss 118 or 119. It addresses the apparent inconsistency between maintenance of the privilege and maintenance of the objection.

  8. In the present case, disclosure was the result of carelessness and the objection was raised when the email was tendered. In the circumstances, I consider this to have been sufficient to maintain the privilege, even though the loss of confidentiality would have been known to the defendant’s solicitors from February 2024 and they took no steps to assert it.

  9. Accordingly, the tender of the email of 30 December 2022 (at page 228 of the Court Book) is rejected.

Conclusion, orders, interest and costs

  1. For the above reasons, I have found that AGL has established that it is entitled, under s 64 of the NERL, to recover, as a debt, the sum of $311,358.30 from the defendant. I am satisfied that the defendant used, and is liable to pay for, electricity supplied by AGL to the supply premises for the supply period as alleged.

  2. In light of this finding, it is unnecessary for me to consider the alternative claims in quantum meruit or quantum valebat.

  3. AGL has claimed interest under s 100 of the Civil Procedure Act 2005 (NSW) commencing 7 June 2024. I accept the calculation provided by AGL in its amended statement of claim. As at the date of these reasons, interest is $6,250.99.

  4. Further, as it has succeeded on its principal claim, AGL would ordinarily be entitled to recover its costs of the proceedings, as agreed or assessed, on the ordinary basis.

  5. In the event that either party seeks a special costs order, I will make directions that the parties first seek to agree on a costs order but, if they cannot, they are to provide my Associate with an agreed timetable for the determination of any dispute as to costs.

  6. The orders of the Court, therefore, are:

  1. Judgment for the plaintiff in the sum of $317,609.29, inclusive of interest.

  2. Direct the parties to liaise, seek to agree on an order for costs, and notify my Associate of such agreement, by 5pm on 9 September 2024.

  3. In the event that the parties have not agreed on an order with respect to costs, the parties are to provide to my associate, by 5pm on 9 September 2024, a range of mutually available dates for a hearing on the question of costs, preferably on a Friday.

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Decision last updated: 04 September 2024

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Doney v The Queen [1990] HCA 51
Hadden v Inline Partners Pty Ltd [2024] NSWCA 42
Roude v Helwani [2020] NSWCA 310