THE PROPRIETORS STRATA PLAN 30102 v ENERGY AUSTRALIA (formerly known as Sydney Electricity) [1997] NSWCA 251

THE PROPRIETORS STRATA PLAN 30102 v ENERGY AUSTRALIA (formerly known as Sydney Electricity)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 19 August 1997, 29 September 1997 [1997] NSWCA 251

Contract for supply of electricity — whether change of rate levied can be incorporated as a term of contract through a course of dealing.

The strata property was supplied electricity by the respondent at a domestic rate. When the respondent became aware that the premises were used for commercial purposes it increased the rate levied to the applicable rate. The appellant paid the higher rate for an appreciable time, without protest.

On appeal:

The appellant argued there was:

(1) no agreement for the supply of electricity to it.

(2) no agreement to or notification of the increased rate to it.

Held:

There was an agreement for the supply of electricity, and due to the consistent course of dealing, the higher commercial rate was incorporated as a term of the agreement.

Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 applied. Chattis Nominees Pty Ltd v Norman Ross Homeworks Pty Ltd (1992) 28 NSWLR 338 applied.

Handley JA I agree with Stein JA. Beazley JA I agree with Stein JA.

Stein JA On 1 October 1985 the appellant, Strata Plan 30102, was registered at the Land Titles Office. The Plan relates to a building situated at 2 Springfield Lane and 5 Orwell Street, Kings Cross. Under the Strata Titles Act 1973 its body corporate was responsible for the control and management of the common property for the benefit of the proprietors.

On 21 October 1985 it appears that the body corporate of the Strata Plan opened an account with the respondent, Sydney Electricity, now known as Energy Australia. The account was numbered 246.016.02.304.00.0. Thereafter electricity was supplied by the respondent for the common areas of the strata plan. The microfiche of the respondent's ledger was in evidence before Judge Herron QC in the District Court. From the commencement of the electrical supply in late 1985 the ledger noted the tariff code as 321. It is common ground that this was the domestic rate. Quarterly accounts were rendered to the appellant strata plan for electricity supplied to the common areas. These accounts were paid promptly until early in 1991.