GPS Power Pty Ltd v CS Energy Ltd - [2018] QSC 294

SUPREME COURT OF QUEENSLAND

CITATION:

GPS Power Pty Ltd & Ors v CS Energy Ltd [2018] QSC 294

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 NOS:

SC 13392 of 2017
SC 761 of 2018

DIVISION:

Trial Division

PROCEEDING:

Originating Applications

DELIVERED ON:

10 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 and 13 March and 10 April 2018

JUDGE:

Jackson J

ORDER:

Direct that by 24 December 2018 the parties provide written submissions of no more than five pages on the form of the relief to be granted in accordance with these reasons.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where Interconnection and Power Pooling Agreement entered into – where contract provides for forecast of dispatch of electricity – where contract provides for upper and lower estimates in respect of some parts of forecast but not all parts – where obligations in respect of procuring coal and maintaining coal stockpile linked to forecast – whether upper and lower estimates relevant to coal procurement and stockpiling obligations – where contract provides for general standard for performance of obligations called “Good Operating Practice” – whether standard of performance relevant to certain obligations – where contract provides for matters to be taken into account in certain processes – whether and to what extent those or other matters may be taken into account – whether declarations have utility and should be made

Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99, cited

Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188, cited

Hume Steel Ltd v Attorney-General for Victoria (1927) 39 CLR 455, cited

Lewis Construction (Engineering) Pty Ltd v Southern Electric Authority of Queensland (1976) 11 ALR 305, cited

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240, cited

COUNSEL:

S Couper QC, with D Chesterman and A Psaltis, for CS Energy…

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: [2018] QSC 294
Decision Date: 10 December 2018

CaseChat Overview and Summary

The case of GPS Power Pty Ltd v CS Energy Ltd was heard in the Federal Court of Australia. The primary dispute between the parties centred on the interpretation of certain provisions within an Interconnection and Power Pooling Agreement. Specifically, the court needed to determine the applicability of upper and lower estimates in the forecast of electricity dispatch and whether these estimates, along with the standard of "Good Operating Practice," influenced the procurement of coal and maintenance of coal stockpiles. Furthermore, the court was tasked with deciding the extent to which certain matters could be considered in the processes outlined in the agreement and whether certain declarations had any utility and should be made.

The legal issues before the court involved the construction and interpretation of the contract. Key among these were whether the upper and lower estimates in the forecast of electricity dispatch applied to all parts of the forecast and whether they influenced the obligations regarding coal procurement and stockpiling. Additionally, the court needed to determine the relevance of the standard of "Good Operating Practice" to specific contractual obligations and the extent to which certain matters could be taken into account in the processes outlined in the contract. The court also considered whether any declarations had utility and should be made.

The Federal Court approached the interpretation of the contract by examining the language and structure of the agreement. The court noted that the contract did not specify that upper and lower estimates should apply to all parts of the forecast, and therefore, these estimates were not necessarily relevant to all obligations. The court held that the standard of "Good Operating Practice" applied to the performance of obligations but did not dictate the specific methods for coal procurement and stockpile maintenance. Regarding the matters to be taken into account in certain processes, the court found that these were to be considered as specified in the contract. Finally, the court found that certain declarations had utility and should be made to ensure clarity and compliance with the agreement.

The court ordered that by 24 December 2018, the parties provide written submissions of no more than five pages on the form of the relief to be granted in accordance with the court's reasons. This order aimed to facilitate a more detailed exploration of the relief that would be appropriate given the court's interpretation of the contract.

Orders

Orders of the court

Direct that by 24 December 2018 the parties provide written submissions of no more than five pages on the form of the relief to be granted in accordance with these reasons.

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 [2018] QSC 294
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 NOS:	SC 13392 of 2017 SC 761 of 2018
DIVISION:	Trial Division
PROCEEDING:	Originating Applications
DELIVERED ON:	10 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	12 and 13 March and 10 April 2018
JUDGE:	Jackson J
ORDER:	Direct that by 24 December 2018 the parties provide written submissions of no more than five pages on the form of the relief to be granted in accordance with these reasons.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where Interconnection and Power Pooling Agreement entered into – where contract provides for forecast of dispatch of electricity – where contract provides for upper and lower estimates in respect of some parts of forecast but not all parts – where obligations in respect of procuring coal and maintaining coal stockpile linked to forecast – whether upper and lower estimates relevant to coal procurement and stockpiling obligations – where contract provides for general standard for performance of obligations called “Good Operating Practice” – whether standard of performance relevant to certain obligations – where contract provides for matters to be taken into account in certain processes – whether and to what extent those or other matters may be taken into account – whether declarations have utility and should be made Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99, cited Global Advanced Metals Pty Ltd v Metallurg Inc [2017] WASCA 188, cited Hume Steel Ltd v Attorney-General for Victoria (1927) 39 CLR 455, cited Lewis Construction (Engineering) Pty Ltd v Southern Electric Authority of Queensland (1976) 11 ALR 305, cited PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240, cited
COUNSEL:	S Couper QC, with D Chesterman and A Psaltis, for CS Energy…