GEC Alsthom Australia Ltd v City of Sunshine & Ors City of Sunshine v GEC Alsthom Australia Ltd & Ors [1997] FCA 813

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 91 of 1993 ) GENERAL DIVISION )

BETWEEN: GEC ALSTHOM AUSTRALIA LIMITED

Applicant

AND: CITY OF SUNSHINE

First Respondent

MAUNSELL PROPRIETARY LIMITED

Second Respondent

CITY OF SUNSHINE

Cross Applicant

GEC ALSTHOM AUSTRALIA LIMITED

First Cross Respondent

MAUNSELL PROPRIETARY LIMITED

Second Cross Respondent

JUDGE: RYAN J PLACE: MELBOURNE DATE: 18 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS: 1. THAT Brimbank City Council ("Brimbank") be substituted for the City of Sunshine as the first respondent and cross-applicant herein. 2. THAT IT BE DECLARED that Brimbank is obliged to indemnify GEC against any direct loss attributable to Brimbank's failure to supply a gas energy flow of 95 gigajoules per hour Lower Calorific Value for a period of 10 years from 1 March 1992.

(In this declaration "net loss of income" includes the amount calculated after deducting: (a) from the power which it is assumed would have been generated but for the said failure to supply a gas energy flow at the stipulated rate (i) 15% attributable to engine and other plant downtime (ii) 11% attributable to parasitic loss; (b) from the income which would have been received from time to time from the sale of the net power which it is assumed would have been so generated (i) any savings achieved by GEC in consequence of the supply of gas to it being reduced from time to time to below 95 gigajoules per hour; (ii) royalties calculated in accordance with cl. 3 of the Gas Supply Agreement on the basis that the first instalment other than the Initial Royalty fell to be calculated on 24 December 1992) 3. THAT Brimbank pay to GEC an amount calculated in accordance with the declaration in paragraph 2 of this Order after allowing for the savings referred to in sub-paragraph (b)(ii) thereof achieved to 31 January 1996 which have been agreed in the sum of $875,996 and for calculation errors in respect of the same period in the sum of $41,564. 4. THAT Brimbank pay to GEC interest on the amounts calculated in accordance with paragraphs 2 and 3 of this Order as due to GEC from month to month from April 1992 to the date of payment at the rate of 11% per annum. 5. THAT Brimbank pay to GEC from month to month after the payment referred to in paragraph 4 of this Order until 1 March 2002, or further order, an amount calculated in accordance with the declaration in paragraph 2 of this Order. 6. THAT Maunsell pay to Brimbank the amounts paid by Brimbank to GEC in accordance with paragraphs 3, 4 and 5 of this Order and an amount representing the expenses incurred by Brimbank as a result of the gas energy flow from the Hulett Street site having been less than 95 gigajoules per hour Lower Calorific Value. 7. THAT GEC's application against Maunsell be dismissed with no order as to costs. 8. THAT Brimbank's cross-application against GEC be dismissed. 9. THAT Maunsell's cross-claim against GEC be dismissed. 10. THAT Brimbank pay to GEC 85% of its costs of and incidental to the application herein and Brimbank's cross-claim against GEC, including any reserved costs, such costs to be taxed in default of agreement. 11. THAT Maunsell pay to Brimbank 85% of Brimbank's costs of its cross-claim against Maunsell, including any reserved costs, such costs to be taxed in default of agreement. 12. THAT Maunsell pay GEC's costs of Maunsell's cross-claim against GEC, including any reserved costs, such costs to be taxed in default of agreement. 13. THAT Maunsell pay to Brimbank 85% of the costs paid by Brimbank to GEC pursuant to paragraph 10 of this Order. 14. THAT liberty be reserved to any party to apply on not less than 72 hours notice in writing to the other parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.