Contact Energy Ltd v Attorney-General - [2009] NZCA 351

IN THE COURT OF APPEAL OF NEW ZEALAND
CA494/2008
[2009] NZCA 351
BETWEENCONTACT 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…

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: [2009] NZCA 351
Decision Date: 11 August 2009

CaseChat Overview and Summary

This appeal against the decision of Associate Judge Gendall was heard in the Court of Appeal of New Zealand. The appeal was brought by Contact Energy Limited (Contact) against the Attorney General (the Crown) in relation to a gas sale contract between the parties. The Crown brought a claim for money owed under the contract, which Contact contested on the basis of estoppel and other defences. The appeal was dismissed by the Court of Appeal. The Court of Appeal found that the Crown's claim in the present proceedings was not the same as that in the 2001 proceedings and that the Crown's claim did not raise the same issues as those decided in the 2001 proceedings. The Court of Appeal also found that Contact had not established any of the defences it raised, including cause of action estoppel, issue estoppel, or the rule in Henderson v Henderson. The Court of Appeal further found that the Crown was entitled to reverse its revision of invoices in periods two and three if its claim failed in relation to period one, but that this issue should be determined at trial. The Court of Appeal awarded costs to the Crown for a standard appeal on a band A basis and usual disbursements.

Orders