Greenlight given for next stage of Commerce Act dispute between Transpower and Todd Energy

The Court of Appeal has ruled that Todd Energy's claim against Transpower¹, and allegations under the Commerce Act that Transpower is charging Todd for an "unwanted" and "unused" service, can (at least in part) proceed to trial.

However, the court has said that it will not compel Transpower to change the way it charges, given that its pricing methodology is authorised by the Electricity (Transpower's Pricing Methodology) Regulations 2004. Todd's ongoing claim will therefore be limited to seeking damages or a declaration.

Todd is a partner in a joint venture that owns a co-generation plan producing electricity within the dairy factory at Whareroa, near Hawera in South Taranaki. Todd's claim was that Transpower, as the owner of the national grid, charges Todd to send electricity that is only sold in South Taranaki across the national grid. Todd argued that, because the electricity is not transmitted outside the South Taranaki area, Todd is effectively paying for a service it does not require, nor use.

Seven causes of action will now proceed to trial, where the court will consider Todd's claim for damages or declaratory relief. Based on its findings that Transpower's pricing methodology is authorised by the Electricity (Transpower's Pricing Methodology) Regulations 2004, the Court of Appeal has ruled out Todd seeking mandatory relief to change its pricing practices.

¹ Transpower New Zealand Limited v Todd Energy Limited (CA80/05 & CA177/06)

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