Business Continuity Services NZ Limited v Contact Energy Limited HC Wellington Civ-2009-485-1531

[2010] NZHC 2357

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-485-1531

BETWEEN  BUSINESS CONTINUITY SERVICES NZ LIMITED

Applicant

ANDCONTACT ENERGY LIMITED Respondent

Judgment:      15 November 2010 at 4.00 pm

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 15 November 2011 at

4.00 pm under r 11.5 of the High Court Rules.

Solicitors:           DLA Phillips Fox, Solicitors, PO Box 2791, Wellington

Buddle Findlay, Solicitors, PO Box 2694, Wellington

BUSINESS CONTINUITY SERVICES NZ LIMITED V CONTACT ENERGY LIMITED HC WN CIV-2009-

485-1531  15 November 2010

Introduction

[1]      The  respondent,  Contact  Energy  Limited,  requests  payment  of  a  sum  of money retained in this Court following a ruling by the Disputes Tribunal in favour of the respondent.

[2]      The applicant, Business Continuity Services NZ Limited, it seems opposes the respondent’s request.

Decision

[3]      On 28 July 2009, the respondent served a statutory demand on the applicant demanding payment of an allegedly overdue sum of $3,907.48 for unpaid power bills. The applicant applied to have the statutory demand set aside. On 23 November

2009, this Court made an order setting aside the demand. However, the order was made on condition that the sum of $3,907.48 be retained in Court pending final resolution between the parties as to the proper amount (if any) due to the respondent, as claimed in the statutory demand. The $3,907.48 (“the retained funds”) was subsequently paid into the Court.

[4]      It appears that the applicant then lodged a claim in the Disputes Tribunal, contending that it had been overcharged by the respondent.  The respondent brought a  counter-claim  seeking  payment  of  the  alleged  debt.  On  3  August  2010,  the Disputes Tribunal dismissed the applicant’s claim and ordered the applicant to pay to the respondent the sum of $4,279.72. On 7 October 2010, the applicant appealed against that decision to the District Court, but the appeal was dismissed.

[5]      The respondent now asks that it be paid up to this amount of $4,279.72 from the retained funds, with any additional funds being disbursed to the applicant.

[6]      The applicant submits that the decision of the Disputes Tribunal was based on false information and errors of law. It claims that the Tribunal was wrong to reach the decision that it did even though the respondent had failed to provide an invoice in support of its claim. In particular, the applicant submits that the Tribunal’s decision

does not address the initial concerns raised in the High Court that the respondent had not produced an actual invoice.

[7]      The applicant’s opposition to the respondent’s request is based on the view that the decision by the Disputes Tribunal was wrong in fact and in law. However, this Court is not in a position to inquire into the merits of the parties’ dispute. Section  23  of  the  Disputes  Tribunals  Act  1988  provides  that  decisions  by  the Disputes Tribunal are to be final, subject to a very limited right of appeal to the District  Court  pursuant  to  s  50:  see  Mellow  v  Tsang  [2004] NZAR 537. The applicant has availed itself of this right of appeal and has failed. It follows that the proceedings are now at an end and there is no longer any basis for the Court to retain the funds: cf Payne v Payne HC Wellington CIV-2003-485-1559, 15 June 2004 at [7].

Conclusion

[8]      For these reasons, I now order that up to $4,279.72 of the retained funds and any interest they have earned be paid to the respondent forthwith. The remaining funds, if any, are to be paid and released to the applicant.

‘Associate Judge D.I. Gendall’