Legal Research
Cases
Todd Pohokura Ltd v Shell Exploration NZ Ltd

Todd Pohokura Ltd v Shell Exploration NZ Ltd

Link copied

Case Copied 26 November 2009 14 min read

Contents

On this page

IN THE COURT OF APPEAL OF NEW ZEALAND
CA571/2009
[2009] NZCA 561
BETWEENTODD POHOKURA LTD

Appellant

ANDSHELL EXPLORATION NZ LTD

First Respondent
ANDOMV 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…

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.

Keep reading for free

Create a free CaseChat account to read Todd Pohokura Ltd v Shell Exploration NZ Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NZCA 561
Decision Date: 26 November 2009

CaseChat Overview and Summary

Todd Pohokura Ltd appeals against decisions of the High Court dismissing its applications for interrogatories and particular discovery against Shell Exploration NZ Ltd and OMV New Zealand Ltd. The appeal was dismissed by the Court of Appeal. Todd argues that the interrogatories and documents sought by particular discovery are necessary to establish the existence of an unlawful production constraint on the Pohokura gas field. The interrogatories related to communications between Shell and OMV prior to the adoption of the Offtake Rules that imposed the constraint. The particular discovery sought printouts and presentations from an economic model that Shell used to inform its decision-making.

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