SUPREME COURT

Dominion, Volume 12, Issue 109, 1 February 1919, Page 9

SUPREME COURT

■ SUBURBAN GAS SUPPLY CONTRACT BETWEEN PETONE AND HUTT In the,-Supreme Court yesterday Mr. Justice Hosking rend the judgment of the Chief Justice (Sir Robert Stout) and his own judgment in tho case brought by, the Lower Hutt Borough Council against the .Petone Borough Council under an originating summons in which tho Court was asked to determine the following questious in rcSpect to tho supply of gas by the defendant borough to the Hutt Borough:— Whether (a) the defendant corporation is bound to supply all the gas which the plaintiff corporation requires for use either far public or private consumption of a quality and under such pressure as may .be sufficient for such public or private consumption? or whether, (b) irrespective Of such sufficiency, the obligation of the defendant corporation is limited as regards power and pressure by an agreement dated November -1, 1913, between the plaintiff and the defendant? The Chief Justice said that, reading the agreement as a whole, he was of opinion that it showed "that the corporation undertook to supply gas for lighting and motivo power, and that there is 110 provision for the Lower Hutt Borough to do anything but pay the price, for the gas supplied. If extra pressure was required, the Petone Borough agreed to supply it. Its duty is to deliver gas fit for lighting the public lamps and private residences, etc. It cannot, in my opinion, be assumed that the parties contemplated that it would be necessary for the Lower Hutt Borough to erect a gasometer, or put a booster in or other machine to create the pressure." The. question that arose, however, was, Had the parties to the agreement limited the duty of the Petone Borough' Council to the pressure and qualitv of the gas referred to in para-' graph"B of the agreement? There was no question as to the quality of the gas. What was 6aid about the pressure was that it was to be at least 2J inches except during the hours of maximum consumption, when it would be increased to 4 inches. There was no agreement's to maximum hours. Lately the Petone Corporation had not kept to this maximum pressure except between 5 and 10 p.m. These might not be the hours of maximum consumption. The agreement in favour of the Lower Hutt Council v-ns that the corporation 1 was bound to do what a company was bound to do under the Gas Supply Act. In His Honour's opinion tho agreement being 'express must regulate tho contract between the two boroughs, and the Act could not lie invoked for the purpose of demanding a greater than was in the agreement. Nor could it be said that, though the Petone borough waS bound to supply gas, and the inference was that it must be of an efficient pressureotherwise the ga3 could not be said to be supplied—that the Lower Hutt Borough could demand a greater pressure than was provided for under paragraph 8 of the agreement. The mere fact that the Petone' Borough had been in the habit of supplying a greater pressure than was provided for did not enable the Lower Hutt Borough to suggest that the pressure ought to nave been maintained. f.f paragraph 8 had been complied with, His Honour was of opinion that tho Hutt Borough could not 6ue the Petone Borough for a breach of agreement. It was apparent, however, that there was 110 time fixed for the hours of maximum consumption, and that, therefore, the corporation would have a right to demand that -the pressure should not be increased only for tho five hours between 6 and 10 p.m. This question had not' been specifically referred to the Court, and there was provision made for its arbitrament, lhat question was still' open, and must be left to arbitration. His Honour answered the questions as follow:—(a) The corporation of l'etone, the defendants, would be liable to supply gas under such pressure as may be sufficient during the maximum hours to four inches, and during tho minimum hours to two and a half inches; (b) that the agreement 69 limits tho obligation of the borough of Petone. His Honour Mr. Justice Hosking said that the agreement between the two boroughs provided that the gas supplied should pass , through n special meter to be erected within the Hutt, and by clause 8 it was provided that "the quality of the gas shall be of the minimum lighting quality of 14 candles, and shall bo of a pressure of at least two and a half inches of a column of water at tho inlet of such meter, except during the hours of maximum consumption, when the pressure shall be increased to at least four inches of a column of water." It was admitted by Petone,that the real agreement was that the pressure of four inches should be at the outlet, and not the, inlet, and that-the clause ought to be amended accordingly. The effect of the agreement was that Petone bound itself to supply to the Hutt gas of fourteen candle power in bulk at a given point, with the pressure being at least those prescribed at the periods mentioned. Petone was placed under no obligation to tho Hutt with regard to tho reticulation or the connection with consumers, or the pressure at which consumers should be supplied at their meters. It was quite clear from the expert evidence and the text-books that the pressure at which the gas reaches the consumer was not only inevitably diminished by friction with the pipes, but was also liable to diminution by the increase of consumption. It also appears that it was quite competent mechanically for the Hutt to regulate the pressure at which it might choose or desire that the gas should be supplied to its consumers by erecting a holder pf its own. Bv section 13 of the local Act No. 44 all liability of Petone towards the Hutt was determined as from the time of the eale Petone thereupon ceased to have Buy power to call upon .tho Hutt to perform the duties incumbent where, the Gas Supply Act operated. The implication sought to be imposed was that whatever the increase in consumption, whatever the state of the le-tu-ulation, and whatever the other intervenirg and reducing factors over which Petone had control, Petone bound itself the pressure should be fit to give a proper supply- at the point of consumption. The. Hntt's contention was that the pressure should at no time be less than such o.s would give each consumer a proper pressure. at the meter. If this was what was intended, it was difficult to see w'hy it was not .so expressed, lfc had not been shown that the agreement for supply would be futile if 'he' implication asked for was not allowed. It was not shown that with a supply nt the figures of pressure mentioned the Hutt could not itself remedy the inadequacy which it complained of. It may he that the agreement would be improved if the implication sought were made, but that a contract may be improved by implication made by law -vas not a reason for making tho implication. There must bp a necessity driving the Court to do so. _ In His Honour's opinion it was impossible for tho Court fo mnko the duplication asked for in the case. The Huiguage of the agreement in other pwfs of it appearod to be more consistent with the notion that a supply at the pressure specified was what was eonu'aofi'd far. and by giving which Petone would fulfil its contract. The Court had not liclore it the question whether the contract had been broken during the hours- of ma.\ini'iia consumption: At the hearing Mr. IJ, P. BuPny appeared for tho Hutt Borough and Mr. R. C. Ivirk lor tho Petone Borough. LIFE POLICY MONEY. Mr. Justico Hosking also gave judgment in respect to the caso hoard in December between Mrs. Kirton and Mossrs. Bloinfield and Simpson with reference to the disposal of certain moneys payable under a policy on tho life of George Kirton, deceased. The dispute was as to whether Mrs. Kirton, or the other parties who represented the mortgagees, of Kirton, were entitled to tho proceeds of the policy. His Honour decided that the mortgagees were legal assignees of the policy money, but that as between them and Mrs. Kirton they wore entitled only to a sum of ,£l9O, with the addition of some ijromiums paid by them, Mrs. Kirton being entitled to a sum of .£5Ol lis., the balance of tho moneys paid into Court. The question of the liability of tho fund to payment of interest 011 the amount duo to tho mortgagees was reserved for further argument