Chatha v Wanganui Gas Limited - [2006] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND
CA59/06
BETWEENARSHAD MAHMOOD CHATHA

Applicant

ANDWANGANUI GAS LIMITED

Respondent

Hearing:17 July 2006

Court:Chambers, O'Regan and Ellen France JJ
Counsel:R B Lewis for Applicant

T J Anderson and S J Burlace for Respondent

Judgment:31 July 2006

JUDGMENT OF THE COURT

A THE APPLICATION FOR SPECIAL LEAVE TO APPEAL IS DISMISSED.
BCosts of $1500 together with usual disbursements are awarded to the respondent.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       This is an application under s 67 of the Judicature Act 1908 (“Act”) for special leave to appeal to this Court against a decision of Ronald Young J which was delivered on 14 April 2005. The applicant sought leave from the High Court, but that was refused by Ronald Young J on 28 February 2006.
[2]       The questions in respect of which the applicant seeks leave are as follows:
1.   General damages of distress and humiliation are available in breach of contract cases between commercial organisations and domestic/private customers. The distress and humiliation were caused by two breaches one after other.
a.Wrongful disconnection of gas at the first stage; and
b.Refusal to follow the arbitration procedure within the contract.

2.   Exemplary damages: the respondent’s act was deliberate/wilful not a mistake.
3.   Costs should have followed the event and so costs awarded in the applicant’s favour on a party and party basis.
4.   The applicant should have been awarded costs in the High Court.

Background
[3]       The applicant wanted gas to be supplied by the respondent for his rental property in Palmerston North. He entered into a domestic customer agreement with the respondent’s Palmerston North agent, a gas fitter. The gas was turned on but, eight days later - without notice - the respondent turned off the gas supply. The decision to turn off the supply came after the respondent found out through Gas Network (a network of gas suppliers) that Contact Energy had been a previous supplier at the property and had discontinued supply when the account holder known to Contact as “Mr Chatha” had not paid. The respondent, wrongly, took the view that this “Mr Chatha” was the applicant.
[4]       Some time after the disconnection, the applicant rang another gas retailer who immediately supplied gas to the property.
[5]       The applicant brought proceedings against the respondent relating to its turning off the gas. He sought general damages for distress and humiliation in the sum of $10,000. He also sought exemplary damages in the sum of $20,000 pleading damage to his personal reputation; humiliation; and breach of cultural obligation. He had guests staying with him at the time.
[6]       In the District Court, Judge Ross dismissed the applicant’s claim. In a decision delivered on 10 March 2004, Judge Ross found there had been no breach of contract. Judge Ross subsequently awarded costs to the respondent. The applicant was represented by counsel in the District Court.
[7]       The applicant, representing himself, then appealed out of time to the High Court. Associate…

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: [2006] NZCA 189
Decision Date: 31 July 2006

CaseChat Overview and Summary

The case of Chatha v Wanganui Gas Limited involved an application for special leave to appeal against a decision of Ronald Young J, delivered on 14 April 2005. The applicant, Arshad Mahmood Chatha, sought leave from the High Court to appeal the decision, but this was refused by Ronald Young J on 28 February 2006. The applicant's appeal was to the Court of Appeal of New Zealand, where Ellen France J, along with Chambers and O'Regan JJ, heard the case. The applicant argued that the respondent's wrongful disconnection of gas and refusal to follow the arbitration procedure within the contract warranted damages for distress, humiliation, and exemplary damages. Additionally, the applicant sought costs to be awarded in their favour on a party and party basis, as well as costs in the High Court.

The Court of Appeal assessed the applicant's claims for general damages, exemplary damages, and costs. The Court held that general damages for non-pecuniary loss in contract cases are not normally available in New Zealand, and this was not a case where such an award was appropriate. Furthermore, the Court found that the respondent had not acted in an "outrageous and flagrant" manner, and that exemplary damages are not available for breach of contract. As for the costs, the Court found that the applicant had no entitlement to costs in the District Court or the High Court, as they had not properly brought the appeal. The Court of Appeal concluded that this case did not raise any question of sufficient public or private importance to warrant an appeal.

In conclusion, the Court of Appeal dismissed the application for special leave to appeal and awarded costs of $1,500, together with the usual disbursements, to the respondent. The Court found that the applicant's claims for damages and costs were not supported by the law, and that the application was not properly brought. As a result, the applicant's appeal was unsuccessful, and the decision of Ronald Young J remained in place.

Orders