Mighty River Power Limited v Wanganui Gas Limited HC Auckland CIV-2010-404-8091
[2011] NZHC 571
•16 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-8091
BETWEEN MIGHTY RIVER POWER LIMITED Plaintiff
ANDWANGANUI GAS LIMITED Defendant
Hearing: 3 June 2011
Counsel: A Ross and Ms R Irvine-Shanks for Plaintiff
D Hughes for Defendant
Judgment: 16 June 2011 at 4:00 PM
JUDGMENT OF ALLAN J
This judgment was delivered by
The Hon. Justice Allan on
16 June 2011 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules
……………………………………………..
Registrar/Deputy Registrar
Solicitors:
Chapman Tripp, P O Box 2206 Auckland 1140
Kensington Swan, Private Bag 92101 Auckland 1142.
Case Officer: [email protected]
MIGHTY RIVER POWER LIMITED V WANGANUI GAS LIMITED HC AK CIV-2010-404-8091 16 June
2011
[1] This is an application by the plaintiff for an order directing that an expert be appointed by the Court under High Court Rule 9.36 in order to answer questions of fact raised by one aspect of the statement of claim (known as the “accuracy claim”)
[2] As the argument proceeded, it became clear that there was a significant measure of agreement between the parties. It duly emerged that counsel would be able to settle the terms of an agreed order and accordingly the hearing was adjourned part-heard in order to enable counsel to file a memorandum.
[3] A joint memorandum has now been filed, in terms of which I make the following orders by consent:
2.1 an electricity expert be appointed as a court-appointed expert (the
Expert) in accordance with rule 9.36 of the High Court Rules;
2.2 the parties shall attempt to agree on the Expert to be appointed as the
Expert within 10 working days after the date of this order;
2.3if the parties are unable to reach agreement within 10 working days of the date of this order, the parties must each file with the Court on or before the expiry of 12 working days from the date of this order a memorandum of counsel setting out the names and details of their preferred expert(s). The Court shall then determine the Expert to be appointed on the basis of the memoranda filed;
2.4Rule 9.41 (Remuneration of Court Expert) shall not apply, and the parties shall agree with the Expert as to an appropriate fee. The parties will each pay half of the Expert’s fee;
2.5the questions (the Questions) to be submitted to the Expert are whether:
(a) the plaintiff failed to issue correct invoices to the defendant, as pleaded in paragraphs 78 and 79 of the counterclaim; and if so,
(b) any such inaccuracies were more than de minimus having regard to accepted standards of accuracy in the electricity industry for the sale of electricity to a retail customer that on-sells to approximately 20,-000 retail customers; and if so,
(c) at the conclusion of the contract and the final invoice rendered, the defendant has been invoiced for more than it ought to have been having regard to those inaccuracies, and
by how much (based on the sample period provided for below);
2.6 the Expert shall report on four sample periods only, being the
periods covered in MRP’s invoices to WGL in the months of:
(a) June, July and August 2007; (b) June, July and August 2008;
(c) June, July and August 2009; and
(d) April May and June 2010;
2.7the Expert shall be entitled to adopt such procedure as s/he thinks fit in order to answer the Questions, save that:
(a) WGL is to file and serve a memorandum of counsel within
10 working days of the Court granting these orders, of not longer than three pages, outlining its specific concerns about
MRP’s billing system and which aspects of MRP’s system it
is concerned have led to inaccuracies;
(b) MRP is to file a memorandum of counsel in reply within
10 working days of being served with WGL’s memorandum;
(c) the memoranda filed in accordance with paragraphs 2.7(a) and (b) above will be provided to the Expert. Representatives of both parties will attend a meeting with the Expert to brief him or her on the issues to be determined. That meeting is to be conducted by the Expert as the expert sees fit; and
(d) the Expert shall be required to circulate to the parties a draft report setting out the methodology that s/he has employed to form a preliminary opinion, the data considered in relation to that methodology, and his/her preliminary opinion, and give reasonable time to the parties to comment on any aspect of the draft report;
2.8the parties shall produce or give access to all such documents as the Expert may require (who shall consult with the parties about the scope of such disclosure prior to requesting it) as s/he thinks necessary or desirable in order to resolve the Questions;
2.9 the Expert’s opinion shall not be binding on the parties;
2.10the procedure of submitting the Questions to the Expert shall be treated as costs reserved in the proceeding;
[4] There will be orders accordingly.
[5] I infer that the provisions of Part 9 subpart 5 of the High Court Rules are to apply, except to the extent that they are inconsistent with the orders now made. In particular, it is assumed that r 9.38 will apply. If I am wrong, then counsel are asked to clarify the position at the next mentions hearing.
[6] The proceeding is to be called in the Commercial List on Friday, 22 July
2011 at 9:30am in order to resolve any procedural issues concerning the appointment of the Expert, including as to the identification of a suitable Expert in accordance with paragraph 2.3 above, if required.
[7] In advance of the next mentions hearing, counsel for the parties are to file memoranda which are to cover, inter alia, proposals for advancing that part of the proceeding which is not being submitted to the Expert, including proposals for discovery (if any) for that separate part of the proceedings.
[8] Costs of and incidental to the hearing of 3 June 2011 are reserved.
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C J ALLAN J.
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