Vector Limited v Electricity Authority - [2019] NZHC 3079

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-702

[2019] NZHC 3079

BETWEEN
VECTOR LIMITED

First Plaintiff

AND

PAUL HUTCHISON, WILLIAM CAIRNS, JAMES CARMICHAEL, KAREN SHERRY AND MICHAEL BUCZKOSKI

Second Plaintiffs

AND

THE ELECTRICITY AUTHORITY

Defendant

On the papers

Counsel:

J A Farmer QC and S M Hunter for First Plaintiff M C Harris for Second Plaintiffs

L A O’Gorman for Defendant

Judgment:

25 November 2019

JUDGMENT OF SIMON FRANCE J (COSTS)

Background to a costs ruling

[1] The plaintiffs sought declarations, the purpose of which was to stop proposals by the Authority to impose standard use-of-system agreements on distributors. The plaintiffs argued the Authority was exceeding its powers. I declined the declarations.1

[2]Costs were reserved in the sense that I made no order as to costs and stated:

Costs memoranda may be filed if necessary.

1 [2017] NZHC 1774.
VECTOR LIMITED AND PAUL HUTCHISON AND OTHERS v ELECTRICITY AUTHORITY [2019] NZHC
3079 [25 November 2019]

I am satisfied counsel and the parties understood that to mean that costs were reserved and would be determined on the basis of memoranda filed if the parties could not themselves agree. No memoranda were filed at the time.

[3] The plaintiffs appealed and the appeal was “allowed in part”. The Court of Appeal issued two judgments. The first judgment made declarations narrower in scope than that sought. My encapsulation of the appeal findings is that the plaintiffs’ declarations went too far in seeking to circumscribe the Authority’s powers, but as regards the particular proposal in issue, they were correct. Certain proposed clauses of the Authority’s draft agreement were declared unlawful.

[4] A second issue concerned the relationship between the role of the Commerce Commission and that of the Electricity Authority. The argument before me was that the Authority, by prescribing quality standards, was acting in an area that was the sole domain of the Commerce Commission. The Court of Appeal requested further evidence and submissions. During the period allocated for this, it is apparent the parties each moved in their position such that by the time of the hearing the Court of Appeal recorded the disagreement had narrowed considerably. It was accepted the Authority could mandate some quality standards, and the Authority cut back on what it had initially been proposing.

[5]Various declarations were made by the Court of Appeal.

Costs on original hearing

[6] The Court of Appeal did not address the costs situation in the High Court. The plaintiffs now seek costs in this Court. They also seek repayment of a costs payment they made to the Authority subsequent to the High Court judgment and prior to the successful appeal. The Authority resists.

Issue one – the payment made by the plaintiffs

[7] The Authority in its submissions talks of there being “no basis for revisiting the costs outcome of the High Court decision”. I am unsure what is meant by that but

make the obvious point if it refers…

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.

Continue reading Vector Limited v Electricity Authority

Details

AGLC: Vector Limited v Electricity Authority [2019] NZHC 3079
Case: [2019] NZHC 3079
Decision Date: 25 November 2019

CaseChat Overview and Summary

Vector Limited, along with several individual plaintiffs, brought an action against the Electricity Authority in the High Court of New Zealand, seeking declarations to prevent the Authority from imposing certain standard use-of-system agreements on electricity distributors. The plaintiffs contended that the Authority was overstepping its statutory powers. The High Court declined to grant the declarations, and the matter proceeded to the Court of Appeal. The Court of Appeal found that the plaintiffs were correct in their assertion that the Authority was exceeding its powers with respect to specific clauses in the proposed agreements, but also that the plaintiffs' initial declarations were too broad. The Court of Appeal granted narrower declarations and made a standard award of costs in favour of the plaintiffs.

The legal issues before the Court included whether the plaintiffs were entitled to costs in the High Court after the Court of Appeal had granted them a standard award of costs, and whether the plaintiffs could recover a costs payment they had made to the Authority before the successful appeal. The Court of Appeal had not addressed the costs situation in the High Court, leaving the matter open for the High Court to determine.

The Court found that the plaintiffs were entitled to costs in the High Court, as they had succeeded in the substantive part of their case. The fact that the Court of Appeal granted narrower declarations did not affect the plaintiffs' entitlement to costs, as they had ultimately succeeded in their main objective. The Court also noted that there was no evidence regarding the circumstances of the costs payment made by the plaintiffs to the Authority, and that this was a matter between the parties. The Court awarded the plaintiffs costs in the sum of $62,917.13, inclusive of disbursements, and clarified that the Authority was not entitled to costs on the High Court hearing.

In conclusion, the Court awarded the plaintiffs costs in the High Court and clarified the costs situation regarding the payment made to the Authority. The Court expressed regret at the delay in addressing the matter, noting that counsel's memoranda had only recently been referred to the Court. The Court emphasised that the Authority had not acknowledged in the High Court that some of its proposals were beyond its powers, a fact that was ultimately confirmed by the Court of Appeal.

Orders