Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the questions set out in the special case be answered as follows:

(1)

Is cl. 5 void for uncertainty?

No.

(2)

If the answer to (1) is No upon the facts as found was I entitled to hold that the Supplier's costs had varied in the respects contemplated by and within the meaning of the said clause?

Yes.

(3)

If the answer to (1) is No am I entitled to make the findings of fact which I originally made prior to the said answers of the said Court of Appeal namely that the Council was entitled under cl. 5 of the agreement to increase the energy charge to the Complainant to 2.3125d. per kilowatt hour as from the 1st day of September 1963?

Yes.

Cur. adv. vult.

The following written judgments were delivered:—

1968, March 8 Barwick C.J.

The Council of the Upper Hunter County District (the Council), a statutory corporation set up by and under the authority of the Local Government Act, 1919 N.S.W., obtained a supply of electricity in bulk successively from each of two generating sources, namely, Muswellbrook Coal Co. Limited and Mepco Pty. Limited at Muswellbrook. It subsold electricity in bulk as well as reticulating it in the municipal areas of Muswellbrook, Scone and Aberdeen. It also carried on some trading activities associated with the use of electricity. The Australian Chilling and Freezing Co. Limited (the Company) desiring a supply of electricity in bulk at its works in Aberdeen, entered into an agreement on 18th December 1959 with the Council for such a supply. The Council thereby bound itself as from the date of the agreement until 1st October 1973 to supply at a point designated in the agreement or otherwise mutually agreed three phase alternating current at a given frequency and voltage with certain permissible tolerances. The supply was to be continuous and in such quantity as the Company might from time to time require, with an agreed minimum quantity. The price to be paid by the Company was stipulated in clauses which have given rise to disputes between the Company and the Council which form the basis of the present proceedings. Consequently, it is as well that I set them out in full: