Power dividend poser makes for comic court

By JAMES GARDINER

Justice Robert Fisher has suggested that 250,000 Auckland electricity customers be declared mentally disordered so that someone can represent their interests in a High Court case he is hearing.

The quip ended the morning session yesterday, in which another twist of the bizarre case of the company formerly known as Mercury Energy was played out before a gallery of two onlookers and no less than four Queen's Counsel.

Justice Fisher has been asked by the Auckland Energy Consumer Trust to agree to a variation in the trust deed to enable the trust to pay $12 million to about 9000 or 10,000 former Aucklanders who missed out on the $560 dividend payout that in March went to every home and business connected to the Vector lines network.

If he does not, the money may be shared among the 260,000 customers who got the previous dividend - about $30 or $40 each.

The trust is represented by John Katz, QC, although one of the five trustees, Karen Sherry, has Tony Molloy, QC, representing her because she is at odds with others over the the way the dividend was paid.

Present Vector customers are represented by Raynor Asher, QC, and the former customers who want a share of the dividend have Robert Fardell, QC, representing them. All, bar Mr Molloy, are having their fees paid by the trust, and Ms Sherry has an application before the court for the trust to meet her costs as well.

Under the trust deed, the trustees were to prepare a roll of Vector (formerly Mercury) customers at least annually and distribute among them the dividend as it was paid from the company's profits. But for nearly two and a half years a series of legal challenges by three Auckland councils prevented that until the High Court rejected the last of the councils' cases late last year.

By then a new trust had been elected, with only Ms Sherry remaining from the previous trust. A new distribution method based on equal shares of the total dividend for all customers was agreed on.

The deed makes no provision for paying former customers of Vector who have moved away, but advertising by the trust for such people has attracted about 8000 responses.

Justice Fisher has to determine whether he has jurisdiction to agree to vary the trust deed and, if so, whether the trustees should be allowed the discretion to agree to it.

Discussion at one point considered the issue of whether the current beneficiaries could be asked whether they agreed that former customers should get the money.

Mr Molloy said to get every power customer in Auckland together would be unrealistic and only one would have to object and there would be no consent.

Expanding on the absurdity of the concept, Justice Fisher said a meeting might be called at Eden Park or the Auckland Domain, then speculated that if every customer was declared mentally disordered someone could be appointed to represent them. The hearing is expected to continue today.