GPS Power Pty Ltd v CS Energy Ltd - [2020] QSC 93

SUPREME COURT OF QUEENSLAND

CITATION:

GPS Power Pty Ltd & Ors v CS Energy Ltd [2020] QSC 93

PARTIES:

In proceeding SC 13392/17:

GPS POWER PTY LTD ACN 009 103 422
(First Applicant)

GPS ENERGY PTY LTD ACN 063 207 456
(Second Applicant)

SUNSHINE STATE POWER BV ARBN 062 295 425
(Third Applicant)

SUNSHINE STATE POWER (NO 2) BV
ARBN 063 382 829
(Fourth Applicant)

SOUTHERN CROSS GPS PTY LTD ACN 063 779 028
(Fifth Applicant)

RYOWA II GPS PTY LTD ACN 063 780 058
(Sixth Applicant)

YKK GPS (QUEENSLAND) PTY LTD ACN 062 905 275
(Seventh Applicant)

v

CS ENERGY LTD ACN 078 848 745
(Respondent)

In proceeding SC 761/18:

CS ENERGY LTD ACN 078 848 745
(Applicant)

v

GPS POWER PTY LTD ACN 009 103 422
(First Respondent)

GPS ENERGY PTY LTD ACN 063 207 456
(Second Respondent)

SUNSHINE STATE POWER BV ARBN 062 295 425
(Third Respondent)

SUNSHINE STATE POWER (NO 2) BV
ARBN 063 382 829
(Fourth Respondent)

SOUTHERN CROSS GPS PTY LTD ACN 063 779 028
(Fifth Respondent)

RYOWA II GPS PTY LTD ACN 063 780 058
(Sixth Respondent)

YKK GPS (QUEENSLAND) PTY LTD ACN 062 905 275
(Seventh Respondent)

FILE NO/S:

SC 13392 of 2017
SC 761 of 2018

DIVISION:

Trial Division

PROCEEDING:

Originating Applications

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Jackson J

ORDER:

The order of the Court is that:

On application SC 13392 of 2017:

1.   It is declared that upon the proper construction of the 2009 IPPA, none of the following includes a reference to the Upper Estimates or the Lower Estimates:

a)   the reference in each of clauses 23.4B(a)(i), 23.4B(a)(ii) and 23.4B(b)(i) to ‘anticipated levels of dispatch as disclosed in the Station Annual Forecast’;

b)     the reference in each of cl. 23.4B(a)(ii) and cl. 23.4B(b)(ii) to ‘the level of dispatch identified in the Station Annual Forecast’;

c)   the reference in cl. 23.4A(c) to ‘so that the Station Annual Forecast can be met’;

d)     the reference in each of cl. 23.5(a)(i) and cl. 23.5(b)(i) to the phrase ‘to meet the Station Annual Forecast’; and

e)   the reference in cl. 23.5(c)(i) to ‘if GPS was dispatched in accordance with the Station Annual Forecast’.

2.   Except for order 1 above, paragraphs 1 to 5, 7, 9, 11 and 13 of the originating application are dismissed.

3.   There is no order for costs of the preliminary hearing of separate questions on the application.

On application SC 761 of 2018:

1.   Paragraphs 1, 2, 4, 5, 5A, 9, 10, 11 and 12 of the originating application are dismissed.

2.   There is no order for costs of the preliminary hearing of separate questions on the application.

PROCEDURE– STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY– DECLARATIONS– APPROPRIATE FORM OF RELIEF– DISCRETION OF COURT– OTHER CASES – where in SC 761/18 the applicant applied for declaratory relief regarding the proper construction of clauses contained within the Interconnection and Power Pooling Agreement (‘IPPA’) – where…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QSC 93
Decision Date: 1 May 2020

CaseChat Overview and Summary

GPS Power Pty Ltd brought an application against CS Energy Ltd, contesting the interpretation of various clauses within the 2009 IPPA. The central issue was the meaning of references to the Upper Estimates and Lower Estimates in the Station Annual Forecast. GPS Power argued that these references included a reference to the Upper Estimates or Lower Estimates, whereas CS Energy Ltd maintained that they did not.

The court was tasked with interpreting the language used in the 2009 IPPA, specifically the clauses mentioned by GPS Power. The key issue was whether the references to the Station Annual Forecast included a reference to the Upper Estimates or Lower Estimates. The court considered the plain meaning of the language, the context in which it was used, and the overall purpose of the 2009 IPPA. After careful analysis, the court found that the references in the Station Annual Forecast did not include a reference to the Upper Estimates or Lower Estimates. The court held that the plain meaning of the language used in the 2009 IPPA did not support GPS Power’s interpretation.

As a result, the court declared that the references in the Station Annual Forecast did not include a reference to the Upper Estimates or Lower Estimates. The court dismissed all other claims made by GPS Power, except for the declaration regarding the interpretation of the Station Annual Forecast. The court also ruled that there would be no order for costs of the preliminary hearing of separate questions on the application. The decision was binding on the parties and clarified the interpretation of the relevant clauses in the 2009 IPPA.

Orders

Orders of the court

The order of the Court is that:

On application SC 13392 of 2017:

1. It is declared that upon the proper construction of the 2009 IPPA, none of the following includes a reference to the Upper Estimates or the Lower Estimates:

a) the reference in each of clauses 23.4B(a)(i), 23.4B(a)(ii) and 23.4B(b)(i) to ‘anticipated levels of dispatch as disclosed in the Station Annual Forecast’;

b) the reference in each of cl. 23.4B(a)(ii) and cl. 23.4B(b)(ii) to ‘the level of dispatch identified in the Station Annual Forecast’;

c) the reference in cl. 23.4A(c) to ‘so that the Station Annual Forecast can be met’;

d) the reference in each of cl. 23.5(a)(i) and cl. 23.5(b)(i) to the phrase ‘to meet the Station Annual Forecast’; and

e) the reference in cl. 23.5(c)(i) to ‘if GPS was dispatched in accordance with the Station Annual Forecast’.

2. Except for order 1 above, paragraphs 1 to 5, 7, 9, 11 and 13 of the originating application are dismissed.

3. There is no order for costs of the preliminary hearing of separate questions on the application.

On application SC 761 of 2018:

1. Paragraphs 1, 2, 4, 5, 5A, 9, 10, 11 and 12 of the originating application are dismissed.

2. There is no order for costs of the preliminary hearing of separate questions on the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GPS Power Pty Ltd & Ors v CS Energy Ltd [2020] QSC 93
PARTIES:	In proceeding SC 13392/17: GPS POWER PTY LTD ACN 009 103 422 (First Applicant) GPS ENERGY PTY LTD ACN 063 207 456 (Second Applicant) SUNSHINE STATE POWER BV ARBN 062 295 425 (Third Applicant) SUNSHINE STATE POWER (NO 2) BV ARBN 063 382 829 (Fourth Applicant) SOUTHERN CROSS GPS PTY LTD ACN 063 779 028 (Fifth Applicant) RYOWA II GPS PTY LTD ACN 063 780 058 (Sixth Applicant) YKK GPS (QUEENSLAND) PTY LTD ACN 062 905 275 (Seventh Applicant) v CS ENERGY LTD ACN 078 848 745 (Respondent) In proceeding SC 761/18: CS ENERGY LTD ACN 078 848 745 (Applicant) v GPS POWER PTY LTD ACN 009 103 422 (First Respondent) GPS ENERGY PTY LTD ACN 063 207 456 (Second Respondent) SUNSHINE STATE POWER BV ARBN 062 295 425 (Third Respondent) SUNSHINE STATE POWER (NO 2) BV ARBN 063 382 829 (Fourth Respondent) SOUTHERN CROSS GPS PTY LTD ACN 063 779 028 (Fifth Respondent) RYOWA II GPS PTY LTD ACN 063 780 058 (Sixth Respondent) YKK GPS (QUEENSLAND) PTY LTD ACN 062 905 275 (Seventh Respondent)
FILE NO/S:	SC 13392 of 2017 SC 761 of 2018
DIVISION:	Trial Division
PROCEEDING:	Originating Applications
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Jackson J
ORDER:	The order of the Court is that: On application SC 13392 of 2017: 1. It is declared that upon the proper construction of the 2009 IPPA, none of the following includes a reference to the Upper Estimates or the Lower Estimates: a) the reference in each of clauses 23.4B(a)(i), 23.4B(a)(ii) and 23.4B(b)(i) to ‘anticipated levels of dispatch as disclosed in the Station Annual Forecast’; b) the reference in each of cl. 23.4B(a)(ii) and cl. 23.4B(b)(ii) to ‘the level of dispatch identified in the Station Annual Forecast’; c) the reference in cl. 23.4A(c) to ‘so that the Station Annual Forecast can be met’; d) the reference in each of cl. 23.5(a)(i) and cl. 23.5(b)(i) to the phrase ‘to meet the Station Annual Forecast’; and e) the reference in cl. 23.5(c)(i) to ‘if GPS was dispatched in accordance with the Station Annual Forecast’. 2. Except for order 1 above, paragraphs 1 to 5, 7, 9, 11 and 13 of the originating application are dismissed. 3. There is no order for costs of the preliminary hearing of separate questions on the application. On application SC 761 of 2018: 1. Paragraphs 1, 2, 4, 5, 5A, 9, 10, 11 and 12 of the originating application are dismissed. 2. There is no order for costs of the preliminary hearing of separate questions on the application.
PROCEDURE– STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY– DECLARATIONS– APPROPRIATE FORM OF RELIEF– DISCRETION OF COURT– OTHER CASES – where in SC 761/18 the applicant applied for declaratory relief regarding the proper construction of clauses contained within the Interconnection and Power Pooling Agreement (‘IPPA’) – where…