IN THE COURT OF APPEAL OF NEW ZEALAND
CA571/2009
[2009] NZCA 561BETWEENTODD POHOKURA LTD
Appellant
ANDSHELL EXPLORATION NZ LTD
First RespondentANDOMV NEW ZEALAND LTD
Second Respondent
Hearing:19 November 2009
Court:Ellen France, Gendall and Harrison JJ
Counsel:A S Olney and I M G Clarke for Appellant
L J Taylor for First Respondent
T C Stephens for Second Respondent
Judgment:26 November 2009 at 2.30 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant must pay each of the respondents costs for a standard appeal on a band A basis plus usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] Todd Pohokura Ltd (“Todd”) appeals against decisions delivered by Dobson J in the High Court at Wellington on 12 August 2009 and 18 August 2009 dismissing applications for orders directing Shell Exploration NZ Ltd (“SENZ”) and OMV New Zealand Ltd (“OMV”), first, to answer interrogatories and, second, to give particular discovery. We shall deal with the appeals in the same order, noting that the primary focus is on the first.
[2] We record that Dobson J dismissed the applications in his capacity as Judge assigned to hear interlocutories and to preside at trial of Todd’s claim for damages and other relief. Dobson J’s judgments determined a series of Todd’s contested interlocutories against the background of his familiarity with relevant legal and factual elements of the case. The Judge exercised a discretionary power and to succeed Todd, as its counsel acknowledges, must show that he acted on a wrong principle, failed to take account of relevant factors or took into account irrelevant factors, or was plainly wrong.
[3] Trial of Todd’s claim is due to commence on 15 February 2010 with an estimated duration of at least six weeks. The parties are working to a pre-trial timetable for completing evidence. SENZ and OMV were due to exchange written briefs for all proposed witnesses on the day following argument of this appeal.
Background
[4] On 15 July 1999 Todd, SENZ and OMV executed a joint venture agreement to develop the Pohokura gas field. The parties unanimously resolved in June 2004 to develop the field in accordance with a plan. By a majority, and against Todd’s express opposition, SENZ and OMV passed a series of operating committee resolutions in early 2006 collectively known as the Offtake Regime. Their purpose was to impose offtake and gas balancing arrangements.
[5] The resolutions fell into three particular parts. First, they adopted rules governing the offtake of gas and condensate from the field, known as the Offtake Rules, requiring SENZ as operator to “assess” the “total production available” for the relevant year. Second, they adopted protocols governing offtake nominations by the parties, known as the Nomination Protocols. Third, they adopted work programmes and budgets for 2006.
[6] In subsequent years SENZ as operator prepared and adopted along with OMV a series of work programmes and budgets which included “the total production available” as “assessed” at 70PJ/a of gas annually. Todd’s position…
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- Case
- [2009] NZCA 561
- Decision Date
CaseChat Overview and Summary
The Court found that the interrogatories were overly broad, speculative and not necessary given the parties' existing evidence exchange timetable. The interrogatories were not relevant to Todd's pleaded causes of action, placed an oppressive burden on the respondents and were of a fishing nature. The Court also found that the Judge did not err in refusing the particular discovery as Todd had not established a sufficient evidential foundation for believing that Shell had failed to discover relevant documents.
The Court of Appeal dismissed Todd's appeal and ordered Todd to pay costs to the respondents on a standard appeal basis plus disbursements. The appeal failed as the interrogatories and particular discovery were either irrelevant, oppressive or speculative. The existing evidence exchange provided the information Todd sought. The Court found the Judge did not err in refusing the particular discovery.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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