South Australian Cold Stores Ltd v Electricity Trust of South Australia [1965] HCA 67

High Court of Australia McTiernan A.C.J. Kitto and Owen JJ. South Australian Cold Stores Ltd v Electricity Trust of South Australia [1965] HCA 67

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Dec. 13 McTiernan A.C.J.

The company alleged by its statement of claim that correspondence which took place in January, February, March and April 1955, between the parties or their respective solicitors contained a contract and an implied term was that the Trust would repay to the company money overpaid by the latter for electricity supplied between 1st November 1954 and 1st October 1957. The company further alleged that the overpayment was illegal and recoverable as money had and received. The action was tried by Napier C.J. The parties tendered to the court a statement of agreed facts. The question of liability depended upon the matters contained in that document. The learned Chief Justice found against the company on its claim and for the Trust on a counterclaim. The company appeals to this Court.

The Trust was established by Act No. 3 of 1946 of South Australia. The Prices Act of that State, passed in 1948, authorized the Prices Commissioner as delegate of the Minister, who would have the duty of administering this Act, to make orders, which would bind the Trust, fixing the maximum rates at which it would be lawful to supply electricity to the public. The Trust supplied electricity under terms and conditions published in the Government Gazette of the State. It had the right under these conditions to fix, from time to time, its tariff of rates. The Commissioner made a prices order on 14th May 1951 and thereupon the Trust published a tariff schedule of rates authorized by the order. The company paid in full all accounts rendered by the Trust during the currency of that tariff. The Commissioner made a prices order dated 14th January 1952 purporting to authorize increased rates and the Trust relying on the validity of this order altered its tariff accordingly. In February 1953 the company complained of the increase in rates and, besides, questioned the validity of the new tariff. The Trust sued the company in the Supreme Court of South Australia for the balance unpaid according to the accounts: the company defended the action on the ground that the prices order was invalid and ineffective and the unpaid balance was, therefore, not recoverable being an illegal charge: further the company counterclaimed to recover past overpayments since the prices order in question was made on the basis that they were made under a mistake of fact and recoverable as money had and received. The Supreme Court found for the Trust and dismissed the company's counterclaim. The company appealed to the High Court. The judgment of the Court was given on 30th October 1957. The Court decided that because of the omission of statutory formalities in the making of the impugned order it was invalid and ineffective and the Trust's claim must therefore fail. The Court also decided that the decision of the Supreme Court of South Australia dismissing the company's counterclaim was right. The High Court said: "It was a simple case of a bona fide assertion of right on the part of the trust which the company acceded to without inquiry or investigation" (South Australian Cold Stores Ltd. v. Electricity Trust of South Australia [1] ).