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Legislation Cited: Civil Procedure Act 2005 (NSW), s 67
Uniform Civil Procedure Rules 2005 (NSW), r 42.7

Cases Cited: Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Baker v The Queen [1975] AC 774
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302
Cirrus Real Time Processing Systems Pty Ltd v Jet Aviation Australia Pty Ltd (2023) 113 NSWLR 80; [2023] NSWCA 280
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32
Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537
CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Ferris v Plaister (1994) 34 NSWLR 474
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757
La Donna Pty Ltd v Wolford AG [2005] VSC 359
Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158
Lahey Constructions Pty Ltd v State of New South Wales [2021] NSWCA 69
Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70
May Harlow Pty Ltd v Winten (No 48) Pty Ltd [2020] NSWSC 1011
Mustac v Medical Board of Western Australia [2007] WASCA 128
Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263
Nyunt v First Property Holdings Pte Ltd [2022] NSWCA 249
Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate [2018] FCAFC 119
Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31
Queensland Nickel Sales Pty Ltd v Park (2025) 312 FCR 225; [2025] FCAFC 129
Re Application by Vernon [2020] NSWSC 608
Re Glenvine Pty Ltd (in liq) [2020] NSWSC 866
Rockment Pty Ltd (t/as Vanilla Lounge) v AAI Ltd (t/as Vero Insurance) (2020) 282 FCR 561; [2020] FCAFC 228
R v Warner (1661) 1 Keb 66
Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38
Srinivas Pty Ltd v Vansan Construction Pty Ltd [2025] VSC 381
Star Entertainment Group Ltd v Chubb Insurance Australia Ltd [2022] FCAFC 16
Steadmark Pty Ltd v Bogart Lingerie Ltd [2013] VSC 402
Straits Exploration (Australia) Pty Ltd v Murchison United NL (2005) 31 WAR 187; [2005] WASCA 241
Toyota Motor Corp Australia Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [1999] FCA 1471
Trust Co Ltd v Commonwealth of Australia [2026] NSWCA 90
Veolia Water Solutions & Technologies (Australia) Pty Ltd v Kruger Engineering Australia Pty Ltd (No 3) [2007] NSWSC 459
Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133

Texts Cited: D Jones and J Walker, Commercial Arbitration in Australia: Under the Model Law (3ed, 2022, Lawbook Co)

Category: Procedural rulings

Parties: Built Pty Ltd (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
N Kidd SC / T Boyle / B Hord (Plaintiff)
D Neggo SC / A Gandar / D de Mestre (Defendant)
Solicitors:
White & Case (Plaintiff)
HWLE Lawyers (Defendant)

File Number(s): 2025/374002

JUDGMENT

1. HER HONOUR: This is an application for a stay on the basis that part of the proceedings are brought in breach of an expert determination clause. The stay is sought by the NSW Department of Education, which engaged the plaintiff, Built Pty Ltd, to build a new high school at Wee Waa. Their contract comprised New South Wales Government GC21 (Edition 2) General Conditions of Contract, as amended by special conditions.

2. The expert determination clause provided for the parties to refer “an Issue” to an expert, but also provided a threshold amount of $500,000 before either party could commence litigation in respect of the matters determined by the expert. The short point is whether the threshold amount applies to each Issue or the cumulative result of all Issues determined by the expert.

3. Neither party suggested that the Court should not determine this question, being one of contractual construction, on this interlocutory application, as opposed to deferring the matter until trial. There are four points:

4. Does Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158 and, on appeal, Lahey Constructions Pty Ltd v State of New South Wales [2021] NSWCA 69, indicate the correct treatment?

5. If not, what is the proper construction of the expert determination clause?

6. If the threshold amount applies to each Issue, then is CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537 wrong or distinguishable?

7. Has the Department waived reliance on the threshold?

The contract

4. By and large, defined words in the contract have initial capitals and are in italics. The concluding clauses of the contract concern interpretation and definitions, some of which warrant mention at the outset. In particular, cl 78.1 provides, “Words in the singular include the plural, and vice versa”. Definitions include (cl 79):

“Claim

A claimed entitlement of the Contractor in connection with the Contract, in tort, in equity, under any statute, or otherwise. It includes a claimed entitlement to an extension of time or for breach of contract by the Principal.

Expert

A person engaged to determine Issues under clause 71.

Expert Determination

The process of determination of an Issue by an Expert, under clause 71 and the procedure in Schedule 5 (Expert Determination Procedure).

Issue

Any issue, dispute or difference raised by either party under clause 69.

Unresolved Claim

A Claim rejected or not agreed under clause 68.7.”

5. The contract is replete with obligations to do things by particular times, not the least of which is the Contractor’s obligation to complete the Works by the Contractual Completion Date: cl 65.1. The Contractor is obliged to make a Payment Claim on the last Business Day before the end of each month (cl 58.1; item 46A, Contract Information) and a Final Payment Claim within 13 weeks of achieving Completion (cl 61.1).

6. The contract includes a number of timeframes within which the parties must deal with changes to work and time. The Contractor is obliged to notify the Principal within seven days after the Contractor should reasonably know that a Variation is necessary: cl 48.7. The Contractor is obliged to notify the Principal within seven days after becoming aware of changes in Statutory Requirements: cl 49.1. The Contractor is obliged to notify the Principal within seven days of the start of a delay: cl 50.1.3. The Contractor is obliged to submit a Claim for an extension of time within 28 days after the start of the delay: cl 50.3.2.

7. Clauses 68 to 72 of the General Conditions of Contract are grouped under the heading “Claim and Issue resolution”. Clause 68, “Contractor’s Claims”, details when the builder must submit a Claim and what information the Claim must include. Clause 68 begins:

“68 Contractor’s Claims

.1 If the Contractor makes:

.1 a Claim under a provision of the Contract that does not specify a time for making the Claim; or

.2 a Claim in connection with the Contract or the Works, but not under a provision of the Contract,

the Claim must be submitted within 28 days after the later of the start of the event giving rise to the Claim; and the time the event should have become known to the Contractor, with reasonable diligence on its part. …”

8. Clause 68.5 provides that, if the Principal agrees that the Contractor is entitled to a money adjustment or an adjustment to Contractual Completions Date(s), then the money must be valued in accordance with cl 47 (“Valuation of changes”) and adjustments to Contractual Completion Date(s) must be dealt with under cl 50 (“Extensions of time”). If the Principal agrees to a C**laim involving money, then the Contractor may claim that amount only by including it in a Payment Claim: cl 68.6. Clause 68.7 provides:

“If a Claim is rejected [or] not agreed … it will become an Unresolved Claim, and the Contractor may notify the Principal of an Issue under clause 69.1.”

9. The contract then moves to “Issue Resolution”. Clause 69, “Notification of Issue”, provides:

“.1 The Contractor may dispute an assessment or instruction of the Principal, or seek resolution of an Unresolved Claim, by giving notice to the Principal … of an Issue within 28 days after notification of the assessment or instruction, or within 28 days after it becomes an Unresolved Claim.

.2 Either party may give notice to the other… of an Issue (excluding an Issue referred to in clause 69.1, but including a claim by the Principal) about the meaning or effect of the Contract, or about any matter connected with the Contract, within 28 days after becoming aware of the Issue.

.3 Subject to clause 69.6, the parties must follow the Issue resolution procedures in clauses 69, 70 and 71 before either commences litigation or takes similar action.

…

.6 The Issue resolution procedure in clauses 69, 70 and 71 does not prevent a party from seeking an urgent declaration or injunction from a court.”

10. That is, both the Contractor and the Principal may give notice of an Issue and the parties must follow the Issue resolution procedure in respect of that Issue; see also definition of Issue (cl 79). Clause 70 then requires the parties’ senior executives to confer to try to resolve the Issue and continues:

“…

.2 A party is not entitled to refer an Issue to Expert Determination until 28 days after giving notice of an Issue.

.3 A party may only refer an Issue to Expert Determination by giving notice specifying the Issue to the other party …

.4 Subject to clause 69.6 [urgent declaration or injunction], an Issue for which notice has not been given in accordance with clause 70.3 is barred from Expert Determination or litigation or similar action.”

11. That is, the Expert Determination is the gateway through which all Issues must pass before the parties approach the courts for substantive relief. Clause 71 moves to “Expert Determination”. The first task is to choose an expert. Clause 71.2 provides, “If an Issue is to be referred to Expert Determination under clause 70, the parties must endeavour to agree on the Expert to be engaged.” Once the expert is chosen, cl 71.3 obliges the Principal, on behalf of both parties, to engage the expert by a letter of engagement setting out:

“.1 the Issues referred to the Expert for determination;

.2 the Expert’s fees;

.3 the procedure for Expert Determination in Schedule 5 (Expert Determination Procedure); and

.4 any other matters which are relevant to the engagement.”

12. That is, the contract envisages that more than one Issue may be referred to the Expert. Clause 71 continues (with amendments by special conditions marked up):

“.6 In response to any Issue referred to the Expert by a party, the other party may raise any defence, set-off or cross-claim whether or not related to the Issue.”

13. Where either the Contractor or Principal may refer an Issue to the Expert, then the other party may raise any defence, set-off or cross-claim whether or not related to that Issue*.*

14. The procedure for Expert Determination is set out in Sch 5: cl 71.5. Schedule 5 to the General Conditions is entitled “Expert Determination Procedure". Clause 1 of Sch 5 provides:

“1 Questions to be determined by the Expert

.1 For each Issue, the Expert must determine the following questions, to the extent that they are applicable to the Issue and unless otherwise agreed by the parties:

.1 Is there an event, act or omission which give the claimant a right to compensation, or assists in otherwise resolving the Issue if no compensation is claimed:

.1 under the Contract,

.2 for damages for breach of the Contract, or

.3 otherwise in law?

.2 If so:

.1 what is the event, act or omission?

.2 on what date did the event, act or omission occur?

.3 what is the legal right which gives rise to the liability to compensation or resolution otherwise of the Issue?

.4 is that right extinguished, barred or reduced by any provision of the Contract, estoppel, waiver, accord and satisfaction, set-off, cross-claim or other legal right?

.3 In light of the answers to the questions in clauses 1.1.1 and 1.1.2 of this Expert Determination Procedure:

.1 what compensation, if any, is payable by one party to the other and when did it become payable?

.2 applying the rate of interest specified in the Contract, what interest, if any, is payable when the Expert determines that compensation?

.3 if compensation is not claimed, what otherwise is the resolution of the Issue?

.2 The Expert must determine, for each Issue, any other questions identified or required by the parties, having regard to the nature of the Issue.”

15. Importantly, just because a party may raise any defence, set-off or cross-claim – whether related to the Issue or not – does not mean that the Expert may answer the stated question in cl 1.1.2.4 of Sch 5 favourably to that party, particularly if the matter raised has nothing to do with the Issue.

16. Clause 2 of Sch 5 concerns submissions to the Expert, providing that the party “which referred the Issue to Expert Determination must make a submission in respect of the Issue” within a certain timeframe, followed by a response from the other party, then a reply and any comment on the reply. Clause 3 concerns conferences. Schedule 5 concludes with cl 4, “Role of Expert”, providing that the Expert “must issue a certificate in a form the Expert considers appropriate, stating the Expert’s determination and giving reasons”: cl 4.1.3.

17. Returning to cl 71, the expert determination clause concludes with the critical provisions on this application (with amendments by special conditions marked up):

“.7 Subject to clauses 71.8 and 71.9, the parties must treat each determination of an Expert as final and binding and a party that owes money to the other pursuant to the determination must pay that amount to the other party within 28 days after receiving the determination.

.8 Neither party may commence litigation in respect of the matters determined by the Expert unless the determination:

.1 does not involve paying a sum of money; or

.2 requires one party to pay the other an amount in excess of [$500,000], calculated without having regard to:

.1 any interest that may be payable; and

.2 any amount that has been the Expert determines is payable by the Contractor to the Principal for the restitution of an amount paid pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW). …

.9 Neither party may commence litigation in respect of the matters determined by the Expert unless they do so within 56 days after receiving the determination.”

18. Reference to “the matters determined by the Expert” is distinct from the Issue so determined and, I think, refers to the range of questions and topics which may arise in the course of resolving the Issue. The same words are used in the same way in cl 71.9 and, not the same but similarly, in cl 71.3.4. The reference to “matters” encompasses the “questions” prescribed in Sch 5 in relation to “each Issue”. The phrase captures the subjects canvassed by the Expert and precludes the parties from litigating those matters unless the threshold is cleared.

The expert determination

19. Over the course of the Wee Waa project, the builder issued various claims for variations, extensions of time (EOT**s) and so on, which the Department determined. In November and December 2023, the builder issued four notices, disputing the Department’s determination of some of its claims. In March 2024, an expert was engaged. The Department’s letter of engagement noted:

“The Issues referred to the Expert for determination

6. There are four Issues that have been referred to Expert Determination and [the Department] confirms that the parties have agreed that all Issues in dispute are to be dealt with together.”

20. The Department gave details of each notice of an Issue, collectively defined in the letter as “t****he Issues”. A copy of each notice of Issue was provided, together with Sch 5.

21. Meanwhile, in January and February 2024, the builder issued four further notices, disputing the Department’s determination of other Issues. In April 2024, the Department sent a further letter to the expert, providing details of the four additional Issues, collectively defined as “t****he Additional Issues”. The expert was prepared to accept the Additional Issues as well.

22. In August 2025, the expert issued a report entitled “Expert Determinations pursuant to Clause 71 of the Contract”. The expert separately addressed each of the eight Issues and gave an expert’s certificate for each Issue. Of the eight Issues raised by the notices, it is only necessary to summarise the outcome of the determination in respect of three Issues, as follows:

| Issue | Description | Expert Determination | | EOT 4 | Claim for delay costs and adjustment to contract price to account for storage costs arising from Department’s delay in obtaining State Significant Development Approval. | Builder entitled to 34 working days EOT (cl 50.1.1) and 4 working days EOT (cl 50.8) (or 53 calendar days). Not entitled to delay costs or storage costs. | | EOT 5 | Claim for EOT for delay arising from material differences in planning approval conditions by Department’s provision of Flood Impact Assessment. | Not entitled to EOT or delay costs. | | FF&E Supply | Claim for adjustment to contract price in connection with supply of furniture fixtures and equipment. | Builder not entitled to payment. |

23. In September 2025, the builder commenced these proceedings. Some of the relief sought was the subject of the expert determination, specifically, Issues EOT 4, EOT 5 and FF&E Supply. The builder now seeks the following relief in respect of these Issues:

24. for EOT 4, the builder seeks a declaration that it was entitled to an EOT of 53 calendar days (that is, the same days as those determined by the expert) together with delay costs of $1,012,565 and a variation of $1,597,709;

25. for EOT 5, an EOT of 61 calendar days plus delay costs of $1,165,405; and

26. in respect of FF&E Supply, $1,638,930.45 on a quantum meruit basis.

27. In February 2026, the Department’s solicitor advised that, in the course of preparing a Technology and Construction List Response and Cross-Claim, it had come to their attention that several of the claims advanced in the proceedings were barred from being litigated by cl 71.8 of the contract, in particular, the claims in respect of EOT 4, EOT 5 and FF&E Supply. Each of these claims had been submitted for expert determination. Each claim involved paying a sum of money. In each case, the amount determined by the expert was less than the threshold of $500,000, indeed, the expert determined that no money was payable to the builder. A determination dismissing or refusing a money claim “involves” paying a sum of money within the meaning of cl 71.8 of the contract: CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537 at [77], [81], [89]-[94] (Stevenson J). The builder was invited to consent to a stay of this portion of the proceedings, failing which the Department intended to seek a stay. A proposed motion and supporting affidavit was supplied.

28. The builder’s consent was not forthcoming. The builder’s solicitor remonstrated that the Department was in default of orders of the Court to file its pleading, to which the Department replied:

“In the interests of addressing the concerns raised by your client in Your Letter, we are instructed that our client is content to file and serve its List Response, Cross-Summons and Cross-Claim List Statement if your client expressly agrees that the fact of the filing and service of those documents (and the fact that our client pleads to the claims that it says are barred (Barred Claims)) will not be:

● taken as our client submitting to the Court’s jurisdiction on the Barred Claims; or

● used against our client by yours in opposition of our client’s proposed Notice of Motion.”

26. In the event that the builder agreed, then the Department would file its pleadings the next day. The builder agreed that it would not use the fact of the filing of the Cross-Claim against the Department in opposition to the motion. The next day, the Department filed its Technology and Construction List Response, Cross-Claim Cross-Summons and Technology and Construction List Cross-Claim Statement. It relevant to note that some of the Department’s claims had also been the subject of the expert determination and also fell below the $500,000 threshold.

27. On 2 March 2026, the Department filed its motion. At the hearing, the Department handed up proposed amended pleadings in the event that it succeeded in its application for a stay, deleting parts of its Cross-Claim which would also be precluded by the $500,000 threshold. The Department accepted that, if it was successful on this application, those issues in its Cross-Claim which were money claims that were determined below the threshold could not be pressed in this litigation either.

Submissions

28. The Department relied on CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537, which was said to be indistinguishable: at [77]-[82], [89]-[94]. Each of Issues EOT 4, EOT 5 and FF&E Supply were before the expert and were determined by him. The nature of the claim before the expert “involved”, in the sense of “concerned”, the payment of money in the form of delay costs or other costs; as such, the exception in cl 71.8.1 did not apply. The claim was dismissed by the expert with the result that the amount determined by him did not meet the threshold. Under cl 71.7, the expert determination was final and binding and neither party could commence litigation in respect of the matters the subject of the claim.

29. The Department submitted that, on the proper construction of the contract, there was a separate “determination” for each Issue referred for determination pursuant to the Expert Determination Procedure. Whether any limb of cl 71.8 was engaged was to be considered in relation to each “determination” separately, not all “determinations” taken in aggregate. For obvious commercial and practical reasons, the contract permitted an Expert to determine Issues concurrently. But that did not mean that there was only one “determination”; there were as many “determinations” as there were Issues. The builder’s construction was said to evoke the spectre of litigation of minor claims through aggregation.

30. The builder submitted that the expert was engaged by the parties to undertake a single expert determination process in which all issues in dispute are to be dealt with together. The fact that the expert chose to provide individual certificates and chose to use the plural “Expert Determinations” on the title page of his report (albeit that the expert used the singular “Expert Determination” throughout the body of his report) cannot be relevant to the proper interpretation of cl 71.8.2. (I agree.) The total amount required to be paid by the State under the expert determination was some $2.3 million, which exceeded the monetary threshold. The relevant clause was cl 71.8.2 and CPB Contractors did not apply. The monetary threshold in cl 71.8.2 was met if the expert determination, taken as a whole, required payment of an amount in excess of $500,000. That was said to be the proper interpretation of cl 71.8.2 as applied in Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158 at [77]-[78] (Henry J) and said to have been followed on appeal in Lahey Constructions Pty Ltd v State of New South Wales [2021] NSWCA 69 at [68]-[69] (Gleeson JA, Bathurst CJ and Bell P agreeing).

31. The builder submitted that such a construction was supported by the contract. Clause 71.3.1 used the language of “the Issues [plural] referred to the Expert for determination”. That is, there may be multiple disputes referred to the Expert for resolution by a single determination. Clause 71.6, as amended by Special Condition 33, provided that, “In response to any Issue referred to the Expert by a party, the other party may raise any defence, set-off or cross-claim whether or not related to the Issue”. This was said to further confirm that a single determination was contemplated to determine a range of disputes, including matters raised by defence, set-off or cross-claim that may not be related to the dispute initially referred to the expert. The fact that a defence, set-off or cross-claim that is not related to the Issue may be raised in response to any of the multiple Issues referred for expert determination told against a construction that treated the determination of each Issue as a separate determination. Otherwise, the final and binding nature of the separate determinations would depend on which Issue the respondent happened to choose to raise its unrelated set-off or cross-claim in response to. That uncommercial outcome supported the conclusion that cl 71.8.2 referred to the total or aggregate amount owing from one party to the other pursuant to the determination taken as a whole. (I disagree, see [15].)

32. The builder further relied on cl 71.7, which states “a party that owes money to the other pursuant to the determination must pay that amount to the other party within 28 days after receiving the determination”. This was said to be language consistent with the expert determination process being a singular process culminating in a single determination with a total or aggregate amount owing from one party to the other pursuant to the determination taken as a whole. The chapeau to cl 71.8 contemplated the clause’s operation, “in respect of the matters determined by the expert” in “the determination”, provided further support for the notion that one determination will be made in respect of multiple matters. The clause’s use of the language “requires one party to pay” dovetailed with cl 71.7, contemplating multiple matters determined in a single determination that required a single payment of a total or aggregate amount. The total amount payable under the single determination of all of the multiple Issues determined was the touchstone for cl 71.8.2, such that where, taken as a whole, the determination required a payment of more than $500,000 then litigation may be commenced in relation to the subject matter of the determination. This was said to make good commercial sense, because it was the net effect of all the disputed claims and cross-claims that was commercially significant.

33. In the alternative, the builder submitted that CPB Contractors was plainly wrong and should not be followed: Veolia Water Solutions & Technologies (Australia) Pty Ltd v Kruger Engineering Australia Pty Ltd (No 3) [2007] NSWSC 459 at [23] (McDougall J); Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [72]-[76] (French J). Alternatively, CPB Contractors was distinguishable on the facts. On the ordinary meaning of the words used, a determination which dismisses a claim for the payment of money is a determination which “does not involve paying a sum of money”. It was important that the words “does not involve paying a sum of money” qualify “the determination”. They did not qualify “the matters determined by the expert”. The clause asked whether the determination involves paying a sum of money, not whether the matters determined by the expert involved paying a sum of money. One of the matters determined by the expert may be a claim for payment of a sum of money but if the determination dismisses that money claim altogether, then it is a determination that does not “involve” paying a sum of money even though the matters determined by the expert may have involved a claim for the payment of a sum of money.

34. The builder further submitted that it was important that what the determination must not involve is “paying a sum of money”. The clause did not say that the determination must not involve “a claim for payment of a sum of money”, which was the interpretation adopted in CPB Contractors. The interpretation of cl 71.8.1 as found in CPB Contractors treated the words “does not involve paying a sum of money” as if they meant “does not involve a claim for payment of a sum of money”. That interpretation was said to do violence to the literal meaning of the contractual text, in circumstances where no violence was necessary in order to give the clause meaning. The word “involve” in cl 71.8.1 had its ordinary meaning of “include as a necessary part”. Thus, a determination which found that a claimant (including a claimant who claims an entitlement to be paid an amount of money) had no entitlement to be paid any sum of money was a determination that does not involve (including as a necessary part) paying a sum of money. Stevenson J placed significant reliance on the fact that cl 71.8.1 uses “involve” whereas cl 71.8.2 uses “requires”, and concluded that therefore “involve” cannot mean “require”: CPB Contractors at [81]. However, each of the clauses use completely different words. It is not a case where the clauses are identical except for one word, in which case it could be presumed that the different words are intended to have different meanings. The fact that cl 71.8.2 uses “requires” did not have the consequence that “involve” in cl 71.8.1 could not have its ordinary meaning of “include as a necessary part”.

35. The builder submitted that a reasonable businessperson in the position of the parties would understand cl 71.8.1 to extend to determinations which find that a claimant (including a claimant who claims an entitlement to be paid an amount of money) has no entitlement to be paid any sum of money at all. A denial of any entitlement at all is conceptually different from a finding that the quantum of the entitlement is less than $500,000. Potentially large money claims which are determined to not give rise to any entitlement at all, for instance because of some disputed threshold requirement or precondition to entitlement, were said to be of a different character to determinations where an entitlement to payment is found to exist in a quantum less than $500,000. The latter types of claims were subject to the contractual bar in cl 71.8.2. However, a determination of no entitlement at all was subject to cl 71.8.1. The apparent scheme of cl 71 was that a determination which concluded that no entitlement to payment exists at all would not be final and binding, a determination that an entitlement to payment exists but in a quantum less than $500,000 would be final and binding, whilst a determination that an entitlement to payment exists in an amount exceeding $500,000 would not be final and binding. The only determinations that are final and binding were those that find an entitlement exists to payment of a relatively small quantum of money.

36. Alternatively, if the Court was not satisfied that the decision of Stevenson J in CPB Contractors was wrong and should not be followed, the builder submitted that the decision of Stevenson J in CPB Contractors was distinguishable insofar as EOT 4 and EOT 5 were concerned. In CPB Contractors, the claims which the expert dismissed were claims by the contractor to be paid for completed works at a higher rate than the principal had paid the contractor: at [3]-[8]. In the present case, the builder’s claims for EOT 4 and EOT 5 were claims for EOTs to complete the contract. The primary effect of such claims, if allowed, was to extend the time for the contractor to complete the works and thereby to avoid or reduce the contractor’s obligation to pay liquidated damages. The primary function of the grant of an EOT was not to give rise to an entitlement to be paid extra money but to extend time for completion and protect the contractor from liquidated damages for delayed completion. Accordingly, a determination by an expert that the contractor was either entitled to an EOT or not entitled to an EOT was a determination that did not involve paying a sum of money, even if the word “involve” had the meaning “concerns” as found by Stevenson J: CPB Contractors at [90], [92]. The fact that a finding that an entitlement to an EOT existed may also have the consequence that the contractor may be entitled to delay costs, did not make the extension of time claim a “claim for money”: see CPB Contractors at [91]. The EOT claim remained a claim for an extension of time for completion which, if granted, would avoid or reduce a liability to pay liquidated damages for delayed completion.

37. The builder further submitted that the Department had waived its right to seek a stay given that it litigated claims which the expert determined required an amount less than $500,000 to be paid in its Cross-Claim: La Donna Pty Ltd v Wolford AG [2005] VSC 359 at [21]-[27] (Whelan J); Zhang v Shanghai Wool and Jute Textile Co Ltd [2006] VSCA 133 at [14]-[15] (Chernov JA, Ashley JA and Bongiorno AJA agreeing); Steadmark Pty Ltd v Bogart Lingerie Ltd [2013] VSC 402 at [41]-[57] (Sifris J); Nyunt v First Property Holdings Pte Ltd [2022] NSWCA 249 at [74] (Bell CJ, Macfarlan and Gleeson JJA agreeing).

38. Further, the builder submitted that the Court should decline to grant the stay as a matter of discretion given that the Department was pursuing similar claims in the Cross-Claim. A party that litigates in breach of an agreement not to litigate should not, as a matter of discretion, be granted Court relief preventing its counterparty from also litigating in breach of the same agreement: May Harlow Pty Ltd v Winten (No 48) Pty Ltd [2020] NSWSC 1011 at [54]-[58] (Williams J); La Donna v Wolford at [21]-[27]; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (2008) 168 FCR 169; [2008] FCA 551 at [52] (Finkelstein J).

39. In reply, the Department submitted that while Henry J construed cl 71.8.2 such that the ‘determination’ meant the “aggregate liability” of one party to the other, her Honour did so based on two decisions which had considered the General Conditions of Contract (Edition 1): at [78], citing Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38 at [10] (French CJ, Crennan and Kiefel JJ); Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59 at [29] (Macfarlan JA) (overturned on appeal on other grounds). That clause differed markedly from the equivalent provision in Edition 2 in that the monetary threshold under Edition 1 expressly applied, “If the Expert determines that one party must pay the other an aggregated amount exceeding the amount in Contract Information item 56”. This approach was said to be an error. The Court of Appeal came to the same result, in circumstances where neither party contended otherwise, but said that no assistance on the constructional issues was to be obtained from cases such as Firedam v Shoalhaven City Council, which considered Edition 1 of the General Conditions of Contract: at [47].

What did Lahey Constructions decide?

40. The builder relied on the first instance judgment in Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158. Henry J was there concerned with cl 71.8.2, specifically, how to calculate whether the threshold had been cleared when adjusting the amounts determined by the expert for payments made under the Building and Construction Industry Security of Payment Act 1999 (NSW). Her Honour’s construction of cl 71.8.2 was overturned on appeal, but what the builder sought to take from the judgments of the primary judge and the Court of Appeal was that all proceeded on the basis that, where the expert determined multiple Issues, then the amounts were aggregated for the purpose of deciding whether the threshold had been cleared.

41. In Lahey, the Department and the builder had two contracts. The parties raised multiple Issues under each contract. One expert determined the multiple Issues under both contracts. Before the primary judge, the Department’s written submissions argued that the amounts determined by the expert under both contracts should be aggregated for the purposes of determining whether the threshold was cleared. Orally, the Department “did not take issue with, and made submissions based on, the Expert having made determinations under each of the … Contracts”: at [68].

42. The builder submitted that the expert had made two determinations, one in respect of each contract. Henry J agreed, at [65]-[66]:

“65 Although the parties agreed that the issues referred under the MV and Bardia Contracts should be determined together, the Expert was appointed pursuant to the General Conditions of each Contract. He was engaged to determine the “Issues” referred to him about matters connected with, and to answer questions in respect of, the “Contract”: cls 69.2, 71.3; Schedule 5, questions 1.1.1, 1.1.2, 1.1.3.

66 In my view, the existence of the Threshold also supports the Expert having made two determinations, one under each of the MV and Bardia Contracts. The Threshold is an amount identified in item 54 of each of the MV and Bardia Contracts and is to be compared against the amount “the determination requires one party to pay to the other” for the purposes of assessing whether “the determination” is final and binding. It would make no sense to compare the Threshold for one contract with an amount the Expert determined was to be paid by one party to the other in relation to matters arising under two contracts.”

43. Beyond delineating between the expert’s determination for each contract, the parties proceeded on the basis that the expert’s determinations of the Issues for each contract were aggregated for the purposes of calculating whether the threshold had been cleared. As her Honour noted at [77]-[78]:

“77 Both Lahey and the DoE seek to identify what they say is “the determination”, by reference to an overall determination of the total or aggregate amount that the Expert has determined is to be paid by one party to the other. In my opinion, that is the correct starting point as a reasonable businessperson reading cl 71.8.2 in the context of the other General Conditions and Schedule 5 would consider “the determination” to be the outcome of the comprehensive expert determination process that required the expert to determine all of the referred issues, as well as the defences, set-offs and cross-claims, and determine, in light of the answers to other questions, what compensation is payable by one party to the other: cl 71.3, 71.6 and Schedule 5.

78 The relevant determination is the “aggregate liability” of one party to the other, rather than the determination of an individual issue or assessment by the expert of any amount that was or is required to be paid: Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38 at [10] (French CJ, Crennan and Kiefel JJ): Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59 at [29] (Macfarlan JA).”

44. There are three difficulties with applying Henry J’s observations. First, her Honour was overturned on appeal. Second, decisions are not authority for what was not argued: CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13] (Gleeson CJ, Gummow and Heydon JJ), citing Baker v The Queen [1975] AC 774 at 787-9 and R v Warner (1661) 1 Keb 66 at 67; see also, more recently, Trust Co Ltd v Commonwealth of Australia [2026] NSWCA 90 at [126] (Leeming JA, Free JA and Griffiths AJA agreeing). As McHugh J put it in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, “This Court has no business in determining issues upon which the parties agree. … Cases are only authorities for what they decide. If a point is not in dispute in the case, the decision lays down no legal rule concerning that issue … Its precedent effect is limited to the issues”: at [79].

45. Whether the expert’s determinations of the Issues is aggregated for the purposes of calculating whether the threshold has been cleared was not argued before her Honour. It is therefore neither necessary nor appropriate to consider whether Henry J’s observations were “plainly wrong”: Queensland Nickel Sales Pty Ltd v Park (2025) 312 FCR 225; [2025] FCAFC 129 at [51] (Markovic, Halley and Wheatley JJ).

46. Third, the Court of Appeal noted in Lahey at [47]:

“For completeness, it should be noted that no assistance on the construction question is to be obtained from cases which have considered the earlier Edition 1 of the General Conditions: Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38; Firedam Civil Engineering Pty Ltd v Shoalhaven City Council [2010] NSWCA 59.”

47. As the Department pointed out, there was good reason for this observation, where the contract considered in Firedam v Shoalhaven City Council – and to which Henry J attached some significance – was materially different. The equivalent to cl 71.8 was then cl 75.6, extracted in Firedam v Shoalhaven City Council at [24]:

“Condition 75 provided for the appointment of an Expert to determine issues that were unable to be resolved between the parties. Subject to the following provisions of cl 75.6, a Determination by an Expert was to be treated as final and binding (see cl 75.7):

[75].6 If the Expert determines that one party must pay the other an aggregated amount exceeding the amount in Contract Information item 56 (calculating the amount without including interest on it, and after allowing for set-offs), or if the Expert’s determination involves a finding which does not involve paying a sum of money, then either party may commence litigation in respect of the amount referred to above (which amount exceeds the amount in Contract Information Item 56) or the finding which does not involve paying a sum of money, as applicable, but only within 56 days after receiving the determination.” (Emphasis added in bold.)

48. There is no equivalent provision in cl 71.8 of New South Wales Government GC21 (Edition 2) General Conditions of Contract.

49. On appeal in Lahey, the Court of Appeal also proceeded on the basis that the expert’s determination of the Issues under each contract could be aggregated when calculating whether the threshold have been clear. That was not an issue before the Court of Appeal and was not argued nor decided. The issue on appeal was how to take into account for payments made under the Building and Construction Industry Security of Payment Act, when calculating whether the threshold had been cleared. I disagree that the correct construction of cl 71.8.2 was determined at first instance or followed on appeal in Lahey. The point now before the Court remains to be decided.

Construction of expert determination clause

50. The learned authors, D Jones and J Walker, in Commercial Arbitration in Australia*:* U**nder the Model Law (3ed, 2022, Lawbook Co) describe expert determination at [1.420]:

“Expert determination involves submitting a dispute, pursuant to a contractual dispute resolution provision, to a neutral expert for final and binding determination. The parties choose an expert with specialist knowledge in the field. … expert determination is not a step on the way to arbitration or litigation, but rather is intended to replace all further dispute resolution processes by making a final and binding determination on the dispute at hand.” (Emphasis added.)

51. Expert determination clauses are construed, where possible, in a way that enables the clause to work as the parties intended so that parties are held to their bargain: Straits Exploration (Australia) Pty Ltd v Murchison United NL (2005) 31 WAR 187; [2005] WASCA 241 at [14] (Wheeler JA, McLure JA and Murray AJA agreeing). President Bell (as the Chief Justice then was) reviewed the principles in Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155, noting that such clauses are to be construed like any other clause of a commercial contract, in accordance with the parties’ intention, objectively ascertained by reference to the language used by the parties, the circumstances known to them and the commercial purpose of the contract: at [79]-[83] (Payne and McCallum JJA agreeing).

52. As to the suggestion by both parties that the other party’s construction was uncommercial, “reasoning by reference to commerciality has its limits”: Star Entertainment Group Ltd v Chubb Insurance Australia Ltd [2022] FCAFC 16 at [11] (Moshinsky, Derrington and Colvin JJ). This is because what is "business commonsense" is itself a topic on which minds may differ and in respect of which an imputed consensus is impossible: Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 at [43] (Gleeson CJ, Gummow and Hayne JJ) citing Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201 (Diplock LJ).

53. Nor are judges best placed to assess the commerciality or otherwise of a particular construction: Cirrus Real Time Processing Systems Pty L**td v Jet Aviation Australia Pty L**td (2023) 113 NSWLR 80; [2023] NSWCA 280 at [87]-[88] (Leeming JA, Kirk JA relevantly agreeing, noting that the High Court was divided as to whether a construction accorded with commercial commonsense in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12). As the Full Court cautioned in Rockment Pty Ltd (t/as Vanilla Lounge*)* v AAI L**td (t/as Vero Insurance*)* (2020) 282 FCR 561; [2020] FCAFC 228 at [56] (Besanko, Derrington and Colvin JJ):

“… references to a commercial result are not intended to invite a consideration of the actual financial consequences for each of the parties of a particular construction in the events which have occurred by the time that a dispute arises. Such inquiries would quickly descend into an assessment with hindsight as to what a fair and reasonable contract might provide given the circumstances that have unfolded. It would be contrary to the very certainties that the law of contract seeks to provide as to the allocation of risks, rights and obligations, if the meaning of agreements were to be adjudicated by reference to such an imprecise foundation. …”

54. The New South Wales Government GC21 (Edition 2) General Conditions of Contract are in wide use. The provisions have been the subject of judicial consideration. As Gleeson JA noted on appeal in Lahey, cl 71.8 is a jurisdictional provision which precludes either party from commencing litigation in respect of the issues determined by the expert, unless one of two exceptions in cl 71.8.1 or cl 71.8.2 applies: at [48]. His Honour considered that the objective purpose of cl 71.8.2 is “readily apparent”, explaining, “An arbitrary threshold of $500,000 has been chosen by the parties for what might be described as minor claims, which following an expert determination, are subject to the preclusion of litigation”: at [56].

55. The contractual provisions were earlier reviewed: see above at [4]-[18]. The contract as a whole requires the Contractor to attend to making Claims – whether for progress payments, variations, extensions of time or otherwise – in particular timeframes. Over the course of a major project, one might expect that Claims may be made by the Contractor and considered by the Principal from time to time, producing something of a conveyor belt of Unresolved Issues and, thus, Issues to be potentially referred for Expert Determination. To this may be added an Issue notified by the Principal under cl 69.2, within 28 days of becoming aware of the Issue.

56. For many construction projects, it would make sense for one expert to determine multiple Issues together, to save time and cost. That expert may gain familiarity with the project, which may enable them to determine multiple Issues more efficiently than appointing a new expert for each Issue. This may make particularly good sense where some of the Issues are for relatively small amounts of money. Other Issues may, however, require particular expertise in, say, valuation or programming. It may make more sense for the parties to engage a different expert for such an Issue. An expert may not be prepared to determine all Issues, or may become unavailable such that another expert may be needed.

57. The expert determination clause and Expert Determination Procedure are drafted to accommodate these possibilities. Expert Determination is defined as the “process of determination of an Issue by an Expert, under cl 71 and the procedure in Schedule 5”. The expert determination clause sets out a procedure to be followed in respect of an Issue, but also envisages that the Expert may be tasked with multiple Issues: cl 71.3.1; cl 79 (definition of Expert). The Expert Determination Procedure in Sch 5 is, however, extremely clear that the Expert must determine a list of questions “for each Issue”: cll 1.1 and 1.2, Sch 5.

58. That is, to the extent that an Expert determines multiple Issues, then the Expert must give a separate determination for each Issue. To the extent that the other party has raised any defence, set-off or cross-claim in response to the Issue, whether related to the Issue or not, then the Expert must answer the stated questions in cl 1.1.2.4 of Sch 5 in the determination for the Issue.

59. Subject to cll 71.8 and 71.9, the parties are then obliged to treat “each determination” of the Expert as final and binding: cl 71.7. Consistently with the structure and language from cl 68 on, each determination will relate to an Issue. Clause 71.7 contemplates multiple determinations made sequentially or concurrently, “… the parties must treat each determination as final …” I do not accept the builder’s submission that it will be inconvenient for the parties to comply with cl 71.7 – “a party that owes money to the other pursuant to the determination must pay that amount to the other party within 28 days after receiving the determination” – in respect of the determination of each Issue, as opposed to the cumulative result of all Issues. Experience suggests that the one thing that contracting parties have no problem spending time on is working out who owes what and ensuring payment.

60. Turning to the all-important cl 71.8, “Neither party may commence litigation in respect of the matters determined by the Expert unless the determination … requires one party to pay the other an amount in excess of” the threshold. As earlier mentioned, reference to “the matters determined by the Expert” is distinct from the Issue so determined and refers to the range of questions and topics which may arise in the course of resolving the Issue and, perhaps, any defence, set-off or cross-claim raised by the other party. It follows from the structure and language from cl 68 on that “the determination” in the chapeau of cl 71.8 is a reference to the determination given by the Expert for an Issue.

61. As to whether this construction accords with the parties’ intention, objectively ascertained by reference to the language used and the commercial purpose of the contract, the objective purpose of cl 71.8.2 is to preclude litigation for minor claims below an arbitrary threshold of $500,000: Lahey at [48] (Gleeson JA). The effect of aggregating the results for multiple Issues determined by one expert will make the threshold, effectively, random. Whether the threshold is cleared for an Issue will not depend on the outcome for that Issue but whether that Issue was heard with other Issues and how all Issues faired collectively.

62. This may turn on whether the parties were able to use one expert to determine all Issues in respect of a construction project, whether that expert produced one combined determination or a series of determinations as the project progressed, whether that expert became unavailable and another expert had to be engaged, or whether a subject matter expert had to be retained to deal with a particular Issue. The amounts determined as payable by an expert when determining multiple Issues in a single report would accumulate to clear the threshold but re-start at zero in a subsequent determination by the same expert or with a new expert.

63. None of these practical matters have anything to do with whether the Issue is sufficiently important to warrant proceeding to litigation after expert determination. The contract identifies two classes of Issue that justify such a course: an issue which does not involve money at all, such as the proper construction of the contract (cl 71.8.1); or, where the money involved exceeds the threshold. The purpose of the expert determination clause is to filter disputes through these two jurisdictional provisions: Lahey at [48]. To bundle all disputes together, such that the resulting litigation involves all disputes, great and small, would defeat the purpose of the clause.

64. It would also be a simple matter for either party to avoid the threshold by bundling small money claims, or Issues, with larger Issues, or to simply have all Issues determined by the same expert. The purpose of filtering minor disputes by use of a threshold is defeated.

65. The effect of such a construction would also, I think, discourage the use of a single expert for multiple Issues. The time and cost saved by that approach would be lost. For example, if the Contractor had 10 claims, each worth potentially $100,000, then it would make sense for the Contractor to seek to have all 10 issues determined by a single expert, as the chances of clearing the $500,000 threshold would be enhanced. The Principal would presumably resist that otherwise sensible suggestion if it meant that the Contractor could aggregate the outcome on the 10 issues and thereby increase the prospect of bringing 10 small claims to Court.

66. As observed in Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate [2018] FCAFC 119, “It goes without saying that a construction that avoids capricious, unreasonable, inconvenient or unjust consequences, is to be preferred where the words of the agreement permit”: at [33] (Allsop CJ, Lee and Derrington JJ). For these reasons, I consider that the threshold amount applies to each Issue and not the cumulative result of all Issues determined by an expert, where that expert determined multiple Issues at the same time.

Is CPB Contractors wrong or distinguishable?

67. This brings me to CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537. It is necessary to set out the facts and analysis, where the builder submitted that the case is wrongly decided and should not be followed. Transport for NSW had a dispute with its contractor in respect of payment for transporting spoil from a work site to a stockpile elsewhere. Transport for NSW contended that the contractor was entitled to be paid at cost plus a margin, while the contractor contended that it was entitled to be paid in accordance with the schedule of rates; the difference was some $10 million. The contractor made six separate claims in respect of this work, of which four claims were referred for expert determination. The expert determined that the contractor was not entitled to further payment for its four claims. The contractor then commenced proceedings seeking payment in respect of all six claims. Transport for NSW sought a stay in respect of the four claims that were the subject of the expert determination.

68. The contractor contended that it was not barred from bringing proceedings in respect of the four claims as the expert determination did not involve “paying a sum of money” and thus fell within the exception in cl 71.8.1. The question was whether a determination dismissing or refusing a money claim “involves paying a sum of money”: at [71]. Stevenson J noted some dictionary definitions of “involve”, but also noted that there was a limit to which he could have regard to such definitions: at [78]-[80]. His Honour continued, at [81]-[82]:

“81 In the context in which “involve” is used in cl 71.8.1 it cannot in my opinion mean “require”. The parties have used the words “involve” and “requires” in the same clause and must have meant those words to have different meanings. “Involve” thus cannot mean “include as a necessary part” or as a “necessary circumstance” because so to construe “involve” would, in effect, give it the same meaning as “require”.

82 In the context of the scale of work called for by the Contract, the scheme of the clause appears directed to ensuring that determination of Claims that are relatively small, that is, under $500,000, are binding; whereas the parties are free to litigate claims where the determination “requires” one party to pay the other more than $500,000.” (Footnotes omitted.)

69. His Honour considered, however, that cl 71.8.1 worked awkwardly in a case where the determination was that a money claim was refused or, in effect, dismissed: at [84]. At [85]-[94]:

“85 On Transport’s case, a dismissal of a money claim is binding no matter how big the claim.

86 In this case, CPB’s claim before the Expert was for some $8.2 million dollars. Had it succeeded, the Determination would not have been binding because it would “require” the payment of more than $500,000, and cl 71.8.2 would be engaged. Yet, on Transport’s case, the Expert’s Determination that the claim be dismissed is binding.

87 On CPB’s case, a dismissal of a money claim is not binding no matter how small the claim.

88 Thus, on CPB’s case, were the claim to be $50, a determination dismissing the claim would not be binding because it would not “involve paying a sum of money”. And yet a determination upholding the claim would be binding because it would not “require” payment of more than $500,000 and thus would not engage cl 71.8.2.

89 Despite these matters, and because of the evident overall object of the clause as I have set out at [82] above, an interpretation of cl 71.8 that leaves as final and binding a determination of a money claim that has the effect that the amount payable is $500,000 or less, including nothing, appears to me more closely to accord with what a reasonable business person in the position of the parties would understand the clause to mean.

90 For that reason, my opinion is that, in the context in which it appears in cl 71.8.1, “involve” means something like “concern” or “have to do with” so that a determination involves “paying a sum of money” if it concerns or has something to do with the paying of a sum of money. This meaning of involve is something like the expression “comprehend within itself” referred to in the Macquarie Dictionary and is consistent with the Oxford Dictionary’s definition of “concern” as including “affect or involve”.

91 A determination dismissing a claim for money does “involve” “paying a sum of money” in this sense as it deals with the claim that, if successful, would have resulted in the paying of a sum of money; and rejects that claim.

92 In my opinion, that is the preferable way of reading cl 71.8.1 so far as concerns determinations in relation to a claim for payment of money. Its focus is not on the amount to be paid or not paid pursuant to the determination, as that threshold has already been set in cl 71.8.2, but on the nature of the determination: whether it does or does not “involve” in the sense of “concern” paying a sum of money.

93 The effect of reading the clause this way is that a determination of a money claim will be binding if the determination is either to dismiss the claim (in which event the exclusion in cl 71.8.1 will not be available as the termination will “involve paying a sum of money”) or is for $500,000 or less (in which case the exception in cl 71.8.2 will not be available).

94 This construction would leave as not final and binding a determination of a money claim in excess of $500,000 and the distinct category of determinations that are not in respect of money claims; such as a dispute about the construction of the Contract or the General Terms, as expressly contemplated by cl 69.2 of the General Terms.” (Emphasis in original.)

70. His Honour concluded that the expert determination did “involve the paying of a sum of money” such that the proceedings should be stayed to that extent: at [95]. The decision has not been the subject of further judicial consideration.

71. As Chen J explained in Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32*,* “It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong”: at [61] citing Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38] (Martin CJ, Wheeler and Buss JJA); see also Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52] (French J); Re Application by Vernon [2020] NSWSC 608 at [63] (Rothman J); Re Glenvine Pty Ltd (in liq) [2020] NSWSC 866 at [48] (Black J).

72. Where the subject of the judgment is the meaning of a standard form commercial agreement, the importance of proceeding in this manner was explained by Finkelstein J in Toyota Motor Corp Australia Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [1999] FCA 1471 at [60] (in dissent in the result, but Moore and Marshall JJ agreeing as to the principle at [20]):

“… The ideal at which courts should aim in construing an instrument is to produce certainty … Accordingly, in most cases an appropriate principle to follow is that if an instrument is given a particular construction by a court, and another instrument in the same form is brought into existence, that construction should apply to the later instrument unless the construction is plainly wrong or the context requires a different meaning. The parties who bring the second instrument into existence are to be taken to have made it on the faith of the construction previously laid down. That is the rule that is applied in the case of standard form commercial agreements: see eg Dunlop & Sons v Balfour, Williamson & Co [1892] 1 QB 507; The Annefield [1971] P 168; Federal Commerce and Navigation Co Ltd v Tradax Export SA [1978] AC 1; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724. ….”

73. Similarly, in Ferris v Plaister (1994) 34 NSWLR 474, Mahoney JA noted that, where clauses in the standard form have been considered by the courts, it is “a legitimate predisposition to conclude that the draftsman intended the words used by him to be construed in the light of the recent judicial considerations of them”: at 498. See likewise Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302 at [77] (White J, as his Honour then was).

74. I am not persuaded that Stevenson J was “plainly wrong” in CPB Contractors. His Honour analysed the competing constructions of the clause, in what appears to have been a thorough and well-argued debate. His Honour considered the points in favour and against the competing constructions by reference to the details of cl 71.8.1 and the contract as a whole. I also agree with Stevenson J’s conclusion, for the reasons his Honour gave.

75. Nor do I consider that CPB Contractors is distinguishable in respect of EOT 4 and EOT 5, as submitted by the builder.

76. As to EOT 4, according to the pleadings and a cursory reading of the expert determination, the Department was delayed in obtaining approval for the development, which thereby delayed the works. The builder made an EOT claim, together with a claim for delay costs. The Department granted the EOT but refused delay costs. In the expert determination, the builder claimed to be entitled to delay costs and, in addition, storage costs as a variation. As such, the issue before the expert and sought to be agitated in this Court is not whether the builder is entitled to an EOT but whether it is entitled to related monetary claims for delay costs and storage costs. The suggested point of distinction with CBP Contractors, being that the point does not “involve” money, is absent.

77. As to EOT 5, the development approval required a flood impact assessment to be prepared. This was obtained but was productive of delay and cost. The builder sought an EOT on this account. This was rejected by the Department but, on a discretionary basis, an EOT of 29 working days was granted. Before the expert, and in this Court, the builder seeks a slightly longer EOT of 34 working days together with associated delay costs of $1,165,405. I do not agree that agitating this claim in this Court does not “involve” a money claim.

Waiver

78. The builder accepted that it agreed not to use the fact of the filing of the Cross-Claim against the Department in opposition to the motion, but submitted that it had no knowledge that the Cross-Claim might include claims which were inconsistent with the interpretation for which the Department argued. It was said that the parties should be held to their bargain. The Department was said to be seeking relief which breached that bargain, if its interpretation was correct. The Department was said to have effectively waived its argument or, as a matter of discretion, should not be granted the relief sought to stop the builder making its claims.

79. Waiver “involves an abandonment of a right by acting in a manner inconsistent with the continued existence of the right”: Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 658 (Latham CJ); [1937] HCA 58. Waiver is an imprecise term, capable of describing different legal concepts, notably election and estoppel: Commonwealth v Verwayen (1990) 170 CLR 394 at 406 (Mason CJ); [1990] HCA 39. As Mason CJ there explained, an existing legal right is not destroyed by mere waiver; unless consideration is present, something in the nature of an election or an estoppel is required. Waiver amounting to an election occurs where a party is entitled to alternative inconsistent rights and acts in a manner which is consistent only with having chosen to rely on one of these rights: at 406-7 (Mason CJ), 452-3 (Dawson J). Waiver may also arise where a person agrees not to raise a defence or conducts themselves as to be estopped from raising it: at 407.

80. As Matthews J observed in Srinivas Pty Ltd v Vansan Construction Pty Ltd [2025] VSC 381, “Waiver is determined objectively by reference to whether the conduct is inconsistent with the maintenance or assertion of a particular right” and does not depend on whether a party intended to waive that right: at [161].

81. I agree that the parties should be held to their bargain, but the bargain is that the builder would not to take this point. The Department expressly sought to clarify with the builder that, by filing its List Response, Cross-Summons and Cross-Claim List Statement, the Department should not be taken to have waived the argument sought to be ventilated in the motion: see [25]. The builder agreed. The Department filed its cross-claim and motion. There is no waiver. For these reasons, the Department is entitled to the relief sought.

Costs forthwith

82. The Department submitted that costs should follow the event and, given the discrete nature of the application, should be payable forthwith. The builder agreed that costs should follow the event but did not agree that the costs should be payable forthwith.

83. Rule 42.7(2) of the Uniform Civil Procedure Rules 2005 (NSW), provides, “Unless the court orders otherwise, costs [of interlocutory applications] do not become payable until the conclusion of the proceedings.” As to when a Court may order otherwise, there are (at least) three recognisable categories of case: where the application or aspect in respect of which the costs order is made “represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect” of the proceedings; there is “some unreasonable conduct on the part of the party against whom costs have been ordered”; and where there is still some considerable distance to go in the litigation: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [11]-[13] (Barrett J). It is not necessary that all of these factors are present for such an order to be made: Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 at [24] (Bathurst CJ, Beazley P and Meagher JA). The first and third categories of case apply here.

84. The Court’s discretion to “order otherwise” is to be exercised judicially, having regard to all relevant circumstances of the case and the interests of justice: Pavlovic at [16]-[18]. Where this motion involved a discrete issue, at the earliest stage of the proceedings, I consider that it is appropriate that the costs of this motion be paid forthwith. Otherwise, the Department will have to wait some time to be paid. Its entitlement to those costs is not going to change. The only countervailing consideration is that the builder may, some time hence, be entitled to set-off those costs against other costs payable by the Department to the builder. I note that potential but consider, overall, that it is fair that the Department’s costs be paid now.

85. For these reasons, I make the following orders:

86. Pursuant to s 67 of the Civil Procedure Act 2005 (NSW), permanently stay prayers 1 to 7, 13 and 15 of the Summons filed on 29 September 2025 and pars 35 to 76 and 126 to 158 of the accompanying Technology and Construction List Statement.

87. Order the plaintiff to pay the defendant’s costs of the motion filed on 2 March 2026, such costs to be payable forthwith.

88. Grant leave to the defendant to file the Amended Cross-Summons in the form marked MFI-1 and the Amended Technology and Construction List Cross-Claim Statement in the form marked MFI-2 within seven days.

89. List the matter for directions in the Technology and Construction List on 2 October 2026.

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Amendments

24 September 2026

Coversheet - Representation: Amendment made to Counsel and Solicitors.