IN THE COURT OF APPEAL OF NEW ZEALAND
CA494/2008
[2009] NZCA 351BETWEENCONTACT ENERGY LIMITED
Appellant
ANDTHE ATTORNEY GENERAL
Respondent
Hearing:26 May 2009
Court:Glazebrook, O'Regan and Ellen France JJ
Counsel:C S Chapman for Appellant
J S Kos QC and K C Millard for Respondent
Judgment:11 August 2009 at 11.30 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellants must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.
REASONS OF THE COURT
(Given by O’Regan J)
Table of Contents
Para No
Introduction [1]
Issues [2]
Factual background [12]
The contract [13]
The 2001 proceedings [26]
Period one [34]
Period two [38]
Period three [39]ARE THE ISSUES IN THE 2007 PROCEEDINGS THE SAME AS THOSE
in the 2001 proceedings? [41]
The present proceeding [53]
Discussion [54]
Conclusion [67]
Cause of action estoppel [69]
Issue estoppel [70]
Henderson v Henderson [85]CAN THE CROWN REVERSE ITS REVISION OF INVOICES IN PERIODS
two and three? [95]
Result [100]
Costs [101]Introduction
[1] This is an appeal against a decision of Associate Judge Gendall relating to a dispute between the respondent (to whom we will refer as the Crown) and the appellant (Contact) relating to a gas sale contract between the parties (the contract): Attorney General v Contact Energy Limited HC WN CIV-2007-485-1960 21 July 2008. The Crown claimed that money was owing to it under the contract and also sought declarations as to its rights under the contract. Contact applied for summary judgment or alternatively for an order that either or both of the Crown’s claims be struck out. Those applications failed in the High Court and Contact now appeals to this Court.
Issues
[2] Broadly speaking, the Crown’s claims are based on its contention that it is entitled to reopen invoices under the contract in some circumstances, including where the index which underlies the gas pricing provision, the Producers Price Index (PPI), is revised. There have been three relevant revisions, relating to three separate periods. The Crown’s revisions increase Contact’s liability for period one, decrease it for period two and increase it for period three. We will explain what these periods are later.
[3] The Crown claims Contact owes it the sum representing the difference between the amount for which the Crown originally invoiced Contact and the amount which would be payable if the revision to the index affecting period one is taken into account.
[4] The first issue is whether the Crown is entitled to reopen invoices as described at [2] above. That is an issue of interpretation of the contract.
[5] However, the principal issue in relation to this aspect of the appeal arises from the fact that an earlier dispute between Contact and the Crown relating to the contract was the subject of litigation in the High Court, this Court and the Privy Council (we will call this the 2001 proceedings). Contact argues that the Crown’s claim for money owing under the contract cannot succeed because it raises…
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- Case
- [2009] NZCA 351
- Decision Date
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Orders
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Background
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Evidence
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