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Shreedhar Motors Ltd v Fiji Electricity Authority [2020] FJHC 312; HBC332.2014 (22 January 2020)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 332 of 2014

BETWEEN

SHREEDHAR MOTORS LIMITED a limited liability company having its

registered office at Karsanji Street, Vatuwaqa,

Suva in the Republic of Fiji.

PLAINTIFF

AND

FIJI ELECTRICITY AUTHORITY a body corporate established under the

Electricity Act having its principal office at 2 Marlow Street,

Suva, in the Republic of Fiji.

DEFENDANT

Counsel : Ms. Saumatua S. and Ms. Disiga F. for the Plaintiff

Mr. Naign A. for the defendant

Date of Hearing : 18^th November 2019

Date of Judgment : 22^nd January 2020

JUDGMENT

[1] The plaintiff filed this writ of summons seeking the following reliefs:

1. An injunction restraining the defendant from disconnecting the power supply of the plaintiff.
2. A declaration that the plaintiff is not liable to pay the defendant the sum of $294,326.67 being demanded by the defendant.

100. Damages.

4. Costs of the action on indemnity basis.
5. Such other and/or further relief as the court deems just in the circumstances.

[2] The plaintiff’s case is that it entered into a contract for the supply of electricity and in or around April 2008 the defendant using its own qualified technicians installed the necessary electricity meters and current transformers at the plaintiff’s premises. On 15^th March 2013 the defendant began investigating the plaintiff’s electricity meters and informed that there was a miscalculation of the electricity consumed by the plaintiff. The defendant then claimed $294,326.67 as outstanding and uncharged bill for the period between 6^th April 2008 and 27^th June 2013 from the plaintiff.

[3] The defendant by way of a counter-claim seeks to recover $294,326.67 for the electricity consumed by the plaintiff with interest of 10% per annum from 01^st February 2014 until the payment in full.

[4] At the pre-trial conference parties admitted the following facts:

1. The plaintiff is a limited liability company duly incorporated in Fiji and having its registered office at Karsanji Street, Vatuwaqa, Suva in the Republic of Fiji.
2. The principal activities of the plaintiff are the sale and service of motor vehicles, sale of related spare parts and accessories and operation of service garage.
3. In Suva the plaintiff conduct its principal business from its show room at Karsanji Street, Vatuwaqa, Suva (hereinafter referred to as “the premises”).
4. The defendant is a body corporate statutory authority established under the Electricity Act and having its principal office at 2 Marlow Street, Suva.
5. The defendant is engaged in the business of generation and distribution of electricity to the public of Fiji under the Electricity Act and Regulations made thereunder.
6. The plaintiff contracted with the defendant for the supply of electricity to the plaintiff’s premises as a result of which the plaintiff became a commercial customer of the defendant holding Account No. 2629018010 with the defendant.
7. At the time of contracting with the defendant the plaintiff paid a deposit of $77,517.40 (Seventy Seven Thousand Five hundred and Seventeen Dollars and Forty Cents) to the defendant.
8. In or around April 2008:
   • (i) The defendant using its own qualified technicians supplied and installed electricity meters No. C2000675, C2000676 and C2000677 at the plaintiff’s premises.
   • (ii) The defendant supplied the current transformers to the plaintiff and the current transformers were installed by the plaintiff’s electrical contractors.
   • (iii) The defendant inspected all the meter wiring.
9. The electricity meters No. C2000675, C2000676 and C2000677 had a ratio of 200/5.
10. The current transformers installed at the plaintiff’s premises had a ratio of 800/5.
11. There was a mismatch between the current transformers supplied by the defendant and the electricity meters supplied and installed at the plaintiff’s premises.
12. The supply of electricity to the plaintiff’s premises by the defendant began on 16/4/08.
13. Sometime in mid-2013, the defendant identified the anomaly in the billing at the plaintiff’s premises.
14. The incompatibility between the meters and the current transformers was rectified by the defendant on 27/6/13.
15. Via email dated 23/7/13, the defendant notified and claimed form the plaintiff the total amount of $294,326.67 (Two Hundred Ninety Four Thousand Three Hundred Twenty Six Dollars and Sixty seven Cents) being the alleged unbilled electricity used by the plaintiff for the period dated 16/4/08 to 27/6/13.
16. On 14/01/14, the defendant charged and invoiced the sum of $294,326.67 (Two Hundred Ninety Four Thousand Three Hundred Twenty Six Dollars and Sixty seven Cents) to the plaintiff’s FEA account.
17. From 9/5/08 to 27/6/13, the defendant issued monthly bills to the plaintiff for the plaintiff’s usage of electricity and such bills were duly paid for by the plaintiff as and when they were due except the sum $294,326.67 (Two Hundred Ninety Four Thousand Three Hundred Twenty Six Dollars and Sixty seven Cents) which has not been paid as it is disputed by the plaintiff.

[5] On behalf of the plaintiff its Chief Executive officer testified at the trial. He referred to certain documents such as the agreement between the plaintiff and the defendant and the documents relating to the payment of the deposit of $77,517.40. These are not facts disputed by the defendant. In fact, the payment of above deposit has been admitted by the defendant at the pre-trial conference.

[6] In the letter sent by the defendant on 2^nd June 2007 (P4) the plaintiff was given three options as to the costs of supply and the plaintiff opted the second one that is to make a 100% refundable contribution subject to the following condition (Clause 1.1.8 of the FEA Consumer Extension Policy – P5):

A consumer electing to provide an interest free refundable cash contribution of 0ne hundred percent (100%) of the cost of the extension : if during the period of five years, the total sum of electricity revenue obtained by the Authority from all electrical loads considered in the original design exceeds the value of the cash contribution. Where at the end of five years, the total sum of the electricity revenue falls short of the value of the cash contribution, the consumer will not be entitled to receive any refund from the Authority.

[7] Although there is no dispute between the parties as to the deposit of $77,517.40, the plaintiff’s witness testified that they consumed more electricity to facilitate the refunding of the said amount.

[8] The plaintiff’s witness admitted in evidence that it consumed electricity for $294,327.67. On behalf of the defendant its Chief Executive Officer testified and explained the process of billing. According to him the capacity of the current transformer installed at the plaintiff’s premises was 800:5 and the electricity meters should also be of the same capacity. However, at that time the defendant did not have electricity meters of the same capacity and therefore, they fixed meters with the capacity of 200:5. When billing the meter reading must be multiplied by four but the officer who entered the meter reading in to the system has failed to enter the multiplication factor.

[9] Section 15(1) of the Electricity Act 2017 provides:

Subject to the provisions of subsection (2), in so far as it is able to do so, the Authority shall supply energy to any person, other than a licensee, requiring a supply energy if such person undertakes to enter into a contract with the Authority, giving such security as the Authority may require, to become a consumer and to undertake, or continue to receive, and to pay for a supply of energy upon such terms and conditions as the Authority may determine.

[10] It is submitted by the plaintiff that Section 76 of the Commerce Commission Decree 2010 states that it is an offence to engage in unconscionable conduct in the pursuit of trade, commerce or in the connection with the supply or possible supply of goods or services.

[11] Unconscionable conduct does not have a precise legal definition. Some examples are;

(i) the relative bargaining strength of the parties;
(ii) whether any conditions were imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party;
(iii) whether the weaker party could understand the documentation used;
(iv) the use of undue influence, pressure or unfair tactics by the stronger party;
(v) the requirements of applicable industry codes;
(vi) the willingness of the stronger party to negotiate; and
(vii) the extent to which the parties acted in good faith.

[12] When the defendant found that there had been an error in the billing system they had a meeting with the officials of the plaintiff company and explained them how this error occurred. The officers of the defendant have made a presentation which is shown in document 5 of the plaintiff’s bundle of documents which was tendered in evidence marked as “P8”.

[13] This is, no doubt, an inadvertent mistake on the part of the officers of the defendant who were responsible in feeding the computer billing system with the meter reading. This position has not been challenged by the plaintiff. An error of this nature cannot be construed as an unconscionable conduct on the part of the defendant.

[14] There is no doubt that the defendant is the stronger party because the monopoly in supplying electricity is vested with the defendant. However, it cannot be said that any damage caused to the plaintiff due the error in the billing system. It is a fact admitted by the plaintiff that it consumed the electricity for the amount claimed by the defendant. If the plaintiff does not pay for the electricity consumed, it will be unjustly enriched.

[15] For these reasons the court is of the view that there has been no unconscionable conduct on the part of the defendant and also that there is no breach of the provisions of section 76 of the Commerce Commission Decree 2010 by the defendant.

ORDERS

1. The action of the plaintiff is dismissed.
2. The plaintiff is ordered to pay the defendant $294,326.67 with interest of 3% per annum from 01^st February 2014 till the date of the judgment.
3. The plaintiff is also ordered to pay the defendant $7500.00 as costs (summarily assessed) of this action.
   

Lyone Seneviratne

JUDGE

22^nd January 2020