On 31 May 2017 the parties entered what is described as the Implementation Agreement.
The agreement commenced on the date the parties signed the Standard Terms (31 May 2017) and is to expire on the 7th Anniversary of the Establishment Date (which is a date occurring 4 months after the Agreement Commencement Date) (see Schedule I to the agreement).
The scope of the agreement is set out under the heading "Background" as follows:
A. The State of Queensland wishes to undertake a social benefit bond ("SBB") project in the area of re-offending ("Focus Area"). An SBB, also known as a social impact bond, is a financial arrangement that pays a return to private investors based on the achievement of agreed social outcomes. Under an SBB, an investor provides upfront funds to a partner (non-government organisation ("NGO") or intermediary) to provide services to government that will, if successful, reduce future costs to government through improved social outcomes in the relevant area. Part of the savings to government is used to repay this investment and provide a reward to the NGO or intermediary commensurate with the outcomes achieved.
B. The parties have agreed, following collaborative work and negotiations during a joint development phase, to undertake a project in the Focus Area, and the Implementation Agreement will be a contract for outcomes supporting the project (including the SBB arrangement).
C. The relationship between You and Us is one of mutual respect. The parties have a shared goal to ensure the delivery of quality and effective service, to work collaboratively and constructively and in a spirit of goodwill, while acknowledging the requirement for accountable, responsible and effective expenditure of public monies.
The objectives of the agreement are set in clause 3 as follows:
3.1 Objectives
Both parties acknowledge and agree that the predominant object of the parties in entering the Implementation Agreement is:
through a social benefit bond transaction, to raise funds for, and otherwise assist and support, an intensive support service to reduce the incidence, frequency and seriousness of reoffending in Queensland of Eligible Youths in the Agreed Locations;
to further an improvement of the economic, personal and social circumstances of Queenslanders, through reduction of the impacts upon communities and the State of Queensland criminal behaviours and upon individuals, families and communities of contact with the justice system; and
to provide the Services as an appropriate means for You to act as, and support and assist others to be, leaders in the provision of support services to reduce the incidence, frequency and seriousness of reoffending of Eligible Youths in the Agreed Locations to improve the economic, personal and social circumstances of Queenslanders and reduce the poverty and suffering of individuals, families and communities in contact with the justice system.
You acknowledge that We intend that:
the Implementation Agreement supports a successful Project and SBB Arrangement;
the Outcomes are delivered or achieved to the benefit of the community and the State of Queensland; and
the Services are evaluated to further the evidence base and focus on measurement for social programs.
3.2 Adherence to objectives
Both parties must, in accordance with and subject to the provisions of the Implementation Agreement, perform their respective obligations under the Implementation Agreement having regard to and with the aim of satisfying the objectives referred to in clause 3.1.
For the avoidance of doubt:
any failure by You to deliver or achieve any Outcomes, or to satisfy or achieve the objectives set out in clause 3.1; or
any finding made in connection with an Annual Review that any Outcomes have not been delivered or achieved, or that the objectives set out in clause 3.1 have not been satisfied or achieved,
in each case, provided You have complied with the terms of the Implementation Agreement, will not alone constitute a breach by You of the Implementation Agreement.
Clause 34 is in the following terms:
34 Dispute resolution
34.1 Dispute resolution under the Implementation Agreement
Subject to clause 34.2 the parties must attempt to resolve any dispute in relation to the Implementation Agreement in accordance with this clause 34 before resorting to court proceedings or other external dispute resolution mechanisms except as specified in this clause.
Both parties agree to initiate discussions with the other to resolve concerns prior to claiming a dispute has arisen.
A party claiming a dispute has arisen in relation to the Implementation Agreement must immediately notify the other party ("Notice of Dispute"). The Notice of Dispute must specify in reasonable detail the nature of the dispute.
If a dispute is so notified, the Joint Working Group will attempt to resolve the dispute.
If the dispute is not resolved by the Joint Working Group within 10 Business Days of it being referred to them then the dispute will be escalated by each party to:
in Your case, Your Chief Executive or another authorised delegate; and
in Our case, Our Chief Executive or an authorised delegate.
If the dispute is not resolved within 10 Business Days of the dispute being referred to the parties' respective senior representatives in accordance with clause 34.1(e), or within 20 Business Days of the dispute being notified in accordance with clause 34.1(c), either party may, by notice to the other specifying the issue for determination refer the dispute to the independent expert determination provided that the referral notice must be given within 5 Business Days of the right to refer the dispute to expert determination having arisen.
Whether or not a dispute exists, each party must continue to perform its obligations under the Implementation Agreement.
34.2 Exceptions to resolution procedures
A party does not need to follow the resolution procedures set out in clauses 34.1 if they are seeking urgent interlocutory relief from a court.
You cannot seek to claim under clause 34.1 that a dispute has arisen in relation to action We take under clauses 14, 15, 16 or 17, or if the disputed decision has been made under a Relevant Law.
Use of the resolution process in clause 34.1 does not preclude other action being taken under the Relevant Law or action being taken under a provision of the Implementation Agreement.
By a letter dated 4 August 2020, the Plaintiff issued a notice of dispute. Discussions by the Joint Working Group resolved some but not all of the issues in dispute. The meeting between executives or representatives of the Plaintiff and the Defendant did not resolve the remaining issue.
On 10 September 2020, the Plaintiff issued a notice referring this dispute to independent expert determination, proposing that it be referred to Susan Crennan AC QC, Wayne Martin AC QC or Michael McHugh AC QC.
Crown Law, on behalf of the Defendant (acting through the Department of Youth Justice ("the Department")), indicated on a "preliminary basis" in a response dated 17 September 2020 that the Department was "willing to refer the matter to expert determination", "prepared to consider a joint payment of any expert fees" and that the Department did "not object to the panel of experts proposed" by the Plaintiff and, subject to the receipt of fee estimates, was prepared to select from this panel.
On 24 September 2020, Clayton Utz acting on behalf of the Plaintiff, sent a letter to Crown Law to "progress…logistics for the conduct of the proposed expert determination" and communicated the Plaintiff's preference for Mr Martin or Mr McHugh to be engaged as the expert.
Crown Law responded to Clayton Utz on 12 October 2020 stating that the contract "is silent as to mechanism for any expert determination and does not mandate participation in this form of dispute resolution" and that the Department was "not prepared to participate in a binding expert determination".
On 13 November 2020, Clayton Utz requested confirmation that the Defendant would "participate in a binding expert determination".
On 27 November 2020, Crown Law wrote to Clayton Utz, stating that the Defendant would "not participate in an expert determination because the Implementation Agreement does not mandate that the parties participate in a binding expert determination process in the event of a dispute". Crown Law also noted that it did not agree with Mr McHugh being retained as the expert.
On 7 December 2020, Clayton Utz wrote to Crown Law stating that while there was a divergence in views between the parties regarding whether any expert determination was binding, the Plaintiff nevertheless wished to have the dispute determined by an expert irrespective of whether the determination binds the parties.
Crown Law wrote to Clayton Utz on 11 December 2020 affirming that the Defendant was "not prepared to engage in an expert determination" and stating the reasons for the Defendant's position. The letter also noted that the Defendant had not agreed to participate in a binding or non-binding expert determination, retain Mr McHugh as expert or contribute to the costs of an expert determination.
On 14 December 2020, the Plaintiff sent an email to Mr McHugh proposing a conference for the making of directions for the progress of the expert determination pending the resolution of these proceedings. Mr McHugh commented that because of the Defendant's refusal to participate in the expert determination, he did not have the authority to give any directions in respect of an expert determination.
[2]
Construction of commercial contracts
In undertaking contractual construction, the Court must search for the parties' intention as ascertained objectively (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 156 at 211). A commercial contract should be construed in a way as to avoid it making commercial nonsense or working commercial inconvenience (Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627 ("Lepcanfin") at [81] citing Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [82]).
Justice Doyle in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2021] SASCA 8 ("Tesseract") (at [20]) referred to his earlier statement in Masonic Homes Ltd v Oppedisano [2016] SASC 196 ("Masonic Homes") in which he commented on what he believed to be the modern trend towards upholding and giving effect to commercial bargains. He described the increasingly flexible and business-like approach to the interpretation of contracts, construing their terms "with an inclination to give effect to the intention of the parties, even if that intention has been obscurely expressed" (Masonic Homes at [55]).
Individual clauses within contracts must be construed not in isolation, but rather as part of the contract as a whole (Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109, Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at [16], Lepcanfin at [82], Inghams at [57]). Consequently, the same clause or same phrase in a particular clause, may not bear a matching meaning from case to case (Lepcanfin at [84], citing FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 120-124).
In Lepcanfin, a case involving a dispute resolution clause, Bell P (at [93]) endorsed the "proper contemporary approach" as articulated in Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442 ("Hancock Prospecting") (at [167]) in which it was stated:
…part of the assumed legal context is this correct general approach which is to give expression to the rational assumption of reasonable people by giving liberal width and flexibility where possible to elastic and general words of the contractual submission to arbitration, unless the words in their context should be read more narrowly.
In Lepcanfin, Bell P reiterated this contextual approach and endorsed (at [94]) the observations of Hammerschlag J in Illawarra Community Housing Trust Ltd v MP Park Lane Pty Ltd [2020] NSWSC 751 ("Illawarra Community Housing Trust") in which his Honour, commenting on the construction of expert determination clauses, stated that:
[61] What the parties intend is to be determined from the words they choose read in the context in which they chose them.
[62] It is to be borne in mind that expert determination is simply a private contractual mechanism to which parties agree. The determination does no more than create binding contractual rights and obligations…Agreement to expert determination does not bring with it an assumed expectation that procedures which are the hallmark of judicial or quasi-judicial proceedings will apply.
[63] In my view, it is contrary to the orthodox approach to construction to make an a priori presumption or generalisation:
(1) as to the type of disputes parties will agree should be covered by an expert determination provision;
(2) that parties did not intend any dispute to be resolved quickly and informally without procedures reminiscent of judicial or quasi-judicial proceedings if it is complex and involves disputes of fact or questions of mixed fact and law;
(3) that commercial parties intend certain types of disputes to be dealt with procedurally in one way and other types of disputes to be dealt with procedurally in another;
(4) that parties intended multiple venues or occasions for their disputes even though they never said so; and
(5) that a single person selected by them to be the expert is not considered by them to be competent to resolve the dispute, including by adopting an appropriate procedure to achieve resolution.
[3]
Implied terms
While the courts may be slow to imply terms (Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337), there are nevertheless a range of implications to which the High Court has often referred which follow below (Paltos v Bartier Berry Pty Ltd [2020] NSWSC 705 at [261]).
In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, it was noted by McHugh and Gummow JJ (at 450) that:
Many of the terms now said to be implied by law in various categories of case reflect the concern of the courts that, unless such a term be implied, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined.
The Court of Appeal summarised the implied duty to cooperate in WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) 341 ALR 467 (at [70]):
The implied duty to cooperate enunciated by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607; 26 ALR 567 at 577 was said by French CJ, Bell and Keane JJ in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; 312 ALR 356; [2014] HCA 32 (at [37]) to reflect the criterion of "necessity" referred to in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422. McHugh and Gummow JJ there explained (at CLR 450; ALR 375) that "many of the terms now said to be implied by law in various categories of cases reflect the concern of the courts that, without the term, the enjoyment of the rights conferred would or could be rendered nugatory, worthless, or, perhaps, seriously undermined". They also referred (at CLR 453; ALR 366) to the situation where the contract would be "deprived of its substance, seriously undermined or drastically devalued".
This implied duty outlined in Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Ltd(1979) 144 CLR 596 ("Secured Income") is a refinement of that recognised in Butt v M'Donald (1896) 7 QLJ 68 in which Griffith CJ found (at 71) that "it is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract" (see also Mackay v Dick (1881) 6 App Cas 251 ("Mackay v Dick") at 263).
In Secured Income, Mason J commented (at 607-8):
It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself.
In Shepherd v Felt & Textiles of Australia Ltd
(1931) 45 CLR 359 (at 378), Dixon J commented that a contract "inevitably imported a tacit condition that [one party] should perform the services faithfully which he contracted to give the [other party], and should not endeavour to impede or defeat the respondent" in achieving the purpose of the contract.
[4]
Dispute resolution clauses
A dispute resolution clause, like any other clause of a commercial contract, is to be construed by reference to the language used by the parties, the circumstances known to them and the commercial purpose or objects to be secured by the contract (Lepcanfin at [80] per Bell P (Payne JA and McCallum JA agreeing) citing Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 ("Electricity Generation Corporation") at [35] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 ("Mount Bruce Mining") at [47]). This is reflective of the objective approach to determining the rights and liabilities of parties to a contract involving "the meaning of the terms of a commercial contract [being] determined by what a reasonable businessperson would have understood those terms to mean" (Electricity Generation Corporation at [35]).
The decision in Rhinehart v Hancock Prospecting Pty Ltd (2019) 93 ALJR 582 (at [26]) demonstrates that contextual considerations are also important in the construction of dispute resolution clauses. In that case (at [26]), the plurality cited with approval the observations of the Full Court of the Federal Court in Hancock Prospecting at [193] (the decision on appeal in the High Court) who stated that "[c]ontext will almost always tell one more about the objectively intended reach of such phrases than textual comparison of words of a general related character". In that case, in agreement with the plurality on the question of construction, Edelman J further reiterated (at [83]) that "every clause in a contract, no less arbitration clauses, must be construed in context. No meaningful words, whether in a contract, a statute, a will, a trust, or a conversation are ever acontextual."
In Tesseract (at [17]), Doyle JA stated that "while the ordinary principles governing the construction of contracts apply, the authorities nevertheless support a liberal approach to the construction of dispute resolution clauses, at least in the context of determining the scope of the operation of those clauses" (citing Rhinehart v Welker (2012) 95 NSWLR 221 at [117]-[120], Lepcanfin at [85]-[93]).
There is an expectation that expert determinations will be conducted honestly and impartially, reflecting the general contemplation that what will occur "will be 'an inquiry in the nature of a judicial inquiry'" (Capricorn Inks Pty Ltd v Lawter International (Australasia) Ltd [1989] 1 QD R 8 ("Capricorn Inks Pty Ltd") at 15). Furthermore, Hammerschlag J observed in Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 576:
[39] As the authorities on the subject make clear, the parties will be bound if the Expert did what the Contract, on its proper construction, required him to do, irrespective of the result. Conversely, the Determination will not be binding if the Expert went outside the ambit of what the Contract required him to do: see, for example: Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314; Holt v Cox (1997) 23 ACSR 590; AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173; Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367.
[5]
Courts avoid finding clauses void
I commented on the Court's reluctance to find contractual clauses void in Mainteck Services Pty Limited v Stein Heurtey SA and Stein Heurtey Australia Pty Ltd [2013] NSWSC 266 (upheld on appeal in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184):
70 The general statement that a court will endeavour to avoid finding a contract void for uncertainty is contained in several authorities, such as Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429. There the contract concerned the supply of bulk electricity which allowed the supplier to vary the maximum demand charge and energy charge. Barwick CJ said at 436 - 7:
But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin's words in this connexion in Hillas & Co. Ltd v Arcos Ltd ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright's words in Scammell (G.) & Nephew Ltd. V. Ouston is not "so obscure and so incapable of any definite or precise meaning that the court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.
71 The general principle was also stated in Meehan v Jones (1982) 149 CLR 571 in the context of a clause that provided the agreement was subject to finance. There Mason J noted at 589:
To say that clauses of this kind are void for uncertainty is to ignore the traditional doctrine that courts should be astute to adopt a construction which will preserve the validity of the contract. Moreover, it is a draconian solution…
72 And furthermore in Thorby v Goldberg (1964) 112 CLR 597 Kitto J noted at 604-5:
…but an agreement is not void for uncertainty because it leaves one party or group of parties a latitude of choice as to the manner in which agreed stipulations shall be carried into effect, nor does it for that reason fall short of being a concluded contract.
73 As noted by Lewison and Hughes in The Interpretation of Contracts in Australia (2012) at 382, 'The court's reluctance to hold a provision in a contract void for uncertainty is greater in a case where the agreement is no longer executory but has been partly performed.' Lewison contains a plethora of authority that demonstrates a court will increase the struggle to overcome uncertainty when a contract has either been executed or partially executed. As noted by Templeman LJ in Sudbrook Trading Estate v Eggleton [1983] 1 AC 444 at 460 (approved on appeal):
Where an agreement which would otherwise be unenforceable for want of certainty or finality in an essential stipulation has been partly performed so that the intervention of the court is necessary in aid of a grant that has already taken effect, the court will strain to the utmost to supply the want of certainty even to the extent of providing a substitute machinery.
74 In Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 there was a partly performed contract for the purchase of two restaurants. The appeal concerned whether a number of matters left outstanding meant the contract failed for uncertainty or incompleteness. Young CJ in Eq (with whom Stein AJA and Hodgson JA agreed) noted numerous authorities that evidence the extent to which a court will go to give effect to a contract. His Honour cited the decision of Mamidoil - Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2001] 2 Lloyd's Rep 76, in which Rix LJ stated at 89:
…particularly in commercial dealings between parties who are familiar with the trade in question and particularly where the parties have acted in the belief that they had a binding contract, the Courts are willing to imply terms, where that is possible, to enable the contract to be carried out.
And at [107] Young CJ in Eq said:
There is another principle which exists both in equity and at law that where a contract is partly executed, a plea of uncertainty will rarely succeed.
75 The Referee made no mention of these general statements or any of the relevant authorities. In failing to do so in my opinion he fell into error. The consequence is that he failed properly to construe the contract and hence the respective parties' obligations under it.
In Tesseract (at [18]), Doyle JA also commented on the Court's reluctance to find contractual provisions void. He noted that dispute resolution provisions will only be found void "if the words used are so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention" (citing Council of the Upper Hunter County District v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 ("Council of the Upper Hunter County") per Barwick CJ at 436-437).
The desire of Courts to avoid a finding of uncertainty was also expressed in Interpretation (2020, 2nd ed, Thomson Reuters):
[19.130] Courts strive to avoid the conclusion that a provision is uncertain. This is an application of the Latin maxim ut res magis valeat quam pereat: see [25.60]. As Megarry J put it: "No doubt there may be cases in which the draftsman's ineptitude will succeed in defeating the court's efforts to find a meaning for the provision in question; but only if the court is driven to it will it be held that a provision is void for uncertainty." This is particularly so in respect of a contract which has been partly performed.
The mere fact that a provision is open to more than one meaning does not give rise to uncertainty. Ambiguity is not uncertainty. Apparent uncertainty will commonly be resolved by the process of construction, including by the reconciliation of inconsistencies and the application of the principles concerning the correction of mistakes…
In addition, the Latin maxim id certum est quod certum redid potest will avoid uncertainty in many cases. The principle reflected by the maxim is that apparent uncertainty will be cured "if some means or standard, or some machinery or formula, is prescribed by the parties whereby that which is on the face of it uncertain can be rendered certain". Even an express or implied reference to a vague criterion such as "reasonableness" will not be uncertain where there is an adequate objective standard by which the criterion can be judged. The issue is one of substance, not verbal formulae. (Footnotes removed).
[6]
Participation in an expert determination is mandatory
The Plaintiff submitted that a dispute resolution clause is to be construed like any other clause of a commercial contract, by reference to the language used by the parties, the circumstances known to them and the commercial purpose or objects to be secured by the contract (Lepcanfin at [80] per Bell P (Payne JA and McCallum JA agreeing) citing Electricity Generation Corporation at [35] and Mount Bruce Mining at [47]).
The Plaintiff argued that cl 34.1 expressly imposes a mandatory requirement on the Defendant to participate in an expert determination. This is found in the word "must" in the first sentence of cl 34.1(a) which requires the parties to attempt to resolve "any dispute in relation to the Implementation Agreement in accordance with this clause 34". Clause 34.1(f) grants each party the right to refer a disputed issue to "independent expert determination".
The Plaintiff submitted that the State is under an obligation to "do any act and sign any document required to give effect" to the expert determination (per cl.36.9). The State was also said to be under an obligation to do all that is necessary to facilitate the expert determination (Mackay v Dick at 263) and it was noted that there is an implied duty of cooperation to the same effect (Secured Income at 607).
The Plaintiff argued that it therefore follows that, in circumstances where it had validly exercised its right to refer disputed issues to "independent expert determination", the State is under an obligation to participate in that expert determination and to take whatever other steps are necessary for the expert determination to proceed without hindrance.
[7]
Clause 34.1 is not void or unenforceable for uncertainty
The Plaintiff rejected the Defendant's argument that cl.34.1 is unenforceable by reason of uncertainty.
[8]
Principles
In support of the rejection of the Defendant's argument, the Plaintiff outlined the following legal principles. First, an agreement will fail as a contract if an essential term of the bargain has not been agreed (Crown Melbourne v Cosmopolitan Hotel (2016) 260 CLR 1 at [31] per French CJ, Kiefel and Bell JJ (citing Thorby v Golberg (1964) 112 CLR 597 at 607) and [57] per Gageler J). However, the contract will still be enforceable if an objective appraisal of the words and conduct leads to the conclusion that parties did not intend agreement of any unfinalised terms to be a precondition to a concluded and legally binding agreement (RTS Ltd v Molkerei Alois Muller GmbH & Co AG [2010] UKSC 14; [2010] 1 WLR 75 at [45], see also Heydon on Contract at [3.70]).
Secondly, a dispute resolution clause will not be void for uncertainty merely because the words used by the parties are open to multiple possible meanings. They will only be void if the words used are so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention (Tesseract at [18] per Doyle JA (Kelly P and Livesey JA agreeing).
Thirdly, in United Group Rail Services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 at [78]-[80], Allsop P (with whom Ipp JA and Macfarlan JA were in agreement) stated that public policy requires that, where possible, courts give "real and enforceable" content to a detailed dispute resolution clause seeking to employ various tools to resolve disputes.
Fourthly, in the absence of agreement between the parties, the "regime" or "procedures" to be followed in an expert determination are a matter for the expert to determine (Triarno Pty Ltd v Triden Contractors Ltd (1992) 10 BCL 305 ("Triarno") at 307 per Cole J, John Nelson Developments Pty Ltd v Focus National Developments Pty Ltd [2010] NSWSC 150 at [210] per Ward J, McGrath v McGrath [2012] NSWSC 578 at [7] per Pembroke J, Watpac Construction NSW Pty Ltd v Taylor Thompson Whitting (NSW) Pty Ltd [2015] NSWSC 780 at [36] per Ball J). Therefore a failure to specify expressly the "regime" or "procedures" to be followed in an expert determination does not result in the agreement failing for uncertainty, because those matters are to be decided by the expert in the absence of agreement (Fletcher Construction Australia Ltd v MPN Group Pty Ltd, NSWSC, 14 July 1997 (unreported); BC9705205 at 24-24 per Rolfe J, see also The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 at [29] per Einstein J and Illawarra Community Housing Trust at [75] per Hammerschlag J).
The Plaintiff submitted that this approach is consistent with the observations made by Hammerschlag J in relation to expert determination clauses in Illawarra Community Housing Trust at [60]-[64], which received endorsement of Bell P in Lepcanfin at [94].
The Plaintiff argued that none of the other matters the Defendant relied upon are sufficient to render the Defendant's obligation to participate in an expert determination unenforceable. They were as follows below.
[9]
The process for selection and appointment of an expert
The Plaintiff highlighted that the Defendant did not initially object to the three experts proposed by the Plaintiff (Exh JB-1, Tab 7, p 109). However, it subsequently said that it did not agree to the retention of Mr McHugh to preside over the determination (Exh JB-1, Tab 13, p 130) and argued that the silence in the Implementation Agreement as to the process for selection and appointment of an expert renders cl 34.1 unenforceable. The Plaintiff submitted that this argument should be rejected.
The Plaintiff submitted that if the Defendant continues its refusal to take the steps necessary for the appointment of an expert, an order could be made for the specific performance of the Defendant's obligations of cooperation (cl 36.9) or of the implied obligations with similar effect (Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 605 ("Booker Industries") per Gibbs CJ, Murphy and Wilson JJ). The Plaintiff argued that, if necessary, an order could be made that the Defendant "do whatever may be reasonably required" to bring about the appointment of an expert (see Kennedy v Vercoe (1960) 105 CLR 521 at 530 cited Booker Industries at 605). Booker Industries was treated as authority for the making of an order enforcing an implied subsidiary obligation of parties to join in appointing an expert by McPherson J in Kinivan v Maoudis [1988] QSC 42; (1988) ANZ Conv Rep 320 at 322 and by Kearney J in Brooks v Wyatt (1992) 112 FLR 12 at 27, see also ADG United Pty Ltd v EG Enterprises Pty Ltd & Ors [2019] NSWSC 745 at [57]-[58] per Black J).
Alternatively, in the circumstances where the machinery provided in cl 34.1(f) has broken down because the Defendant has declined to nominate an expert in breach of their implied obligation to cooperate, the Plaintiff submitted that the Court may substitute its own machinery (Sudbrook Trading Ltd v Eggleton [1983] AC 444 ("Sudbrook") at 484B, Booker Industries at 606 per Gibbs CJ, Murphy and Wilson JJ and 616-617 per Brennan J; see also Heydon on Contract at [3.290]). Here, it was argued that the Court could nominate an expert, or put in place a regime for the identification of an expert.
[10]
The costs of determination
The Plaintiff argued that the absence of any express term of the Implementation Agreement specifying who is to meet the costs of the expert does not give rise to fatal uncertainty. Instead, such an obligation is capable of being addressed by an implied term that each party pay equally the costs of the expert. In Triarno, the question of the costs of the independent expert was not explicitly addressed by the deed in question. Nevertheless, Cole J held (at 307) that an implied term that each party pay equally the costs of the independent expert satisfied the tests referred to in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 282-283.The Plaintiff therefore argued that similarly here, an implied term that each party pay equally the costs of the expert:
1. is reasonable and equitable;
2. is necessary to give business efficacy to the contract because there can be no expert determination without provision for payment of the expert;
3. is obvious to reasonable persons in the position of the parties (see Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691 at 695 and Heydon on Contract at [10.760]) having regard to the public interest aspects of the Implementation Agreement and the fact that each party benefits from the dispute being resolved (see Triarno at 308). In that regard, it is also relevant that when the State initially expressed its willingness to participate in an expert determination, it also noted that it was "prepared to consider a joint payment of any expert" and did not suggest that any other term as to the payment of the expert was appropriate (Exh JB-1, Tab 7, 109);
4. is capable of clear expression;
5. does not contradict any express term of the Implementation Agreement.
[11]
The scope of any issues capable of determination
The Plaintiff highlighted that the Defendant additionally based its refusal to participate in an expert determination on the alleged silence of the Implementation Agreement as to the "scope of any issues capable of determination" (Exh JB-1, Tab 13, p 129). The Plaintiff submitted that this argument should be rejected. Clause 34.1(a) identifies the issues that are subject to mandatory dispute resolution as being those "in relation to the Implementation Agreement". Those words are to be given a "broad and liberal construction" (Lepcanfin at [85]-[93]). The words provide "a criterion" by reference to which the scope of the issues for determination by the expert can be determined (Council of the Upper Hunter County at 437 per Barwick CJ).
[12]
Binding effect of determination
Initially in its written outline, the Plaintiff submitted that it was unnecessary to conclude whether any expert determination that may take place would be final and binding. The parties ultimately invited me orally to make a finding as to whether the determination under cl 34 would be final and binding (T.34/8). As a result of argument, the Plaintiff orally submitted that if a determination took place, the contract should be construed so as to create a final and binding determination (T.2/29, T.6/41-44). The Plaintiff did also note, however, that whether the determination was found to be binding or not, it still wished to pursue such a determination (T.5/43).
[13]
Uncertainty of cl 34.1
The Defendant's case is that cl 34.1(f) of the Implementation Agreement is uncertain because it is "incomplete" (in the sense of the term as used in Heydon on Contract at [3.10] and contrasted with "uncertainty's" other kinds, being "non-finality" and "non-clarity") and unenforceable. Therefore it is argued that the Defendant is not obliged to participate with the Plaintiff in any independent expert determination.
It was stated that cl 34.1(f) is incomplete and unenforceable in circumstances where it is silent as to:
1. the machinery for the selection and appointment of an expert;
2. whether the expert's decision is final and binding;
3. how the costs of the determination are to be borne;
4. the procedures for the determination, including:
1. whether the rules of evidence are to apply;
2. the right of the parties to be legally represented;
3. whether the parties could be compelled to furnish information or documents;
4. whether confidentiality is to be preserved and
1. the scope of any issues capable of determination.
It was submitted that cl 34.1(f) is devoid of any detail as to how an expert determination regime would function and that to be enforceable, the parties must at least define with sufficient certainty the procedures to be followed in any expert determination, to enable the obligations of the parties to be identified and enforced.
[14]
The consequence of the absent machinery
The Defendant rejected the Plaintiff's submission that the Court may impose itself in the machinery of the contract if the contract's existing machinery is ambiguously stated and has therefore failed. This was on the grounds that the situation here could be distinguished from those circumstances as no machinery had failed because there was a lack of machinery altogether. The Defendant argued that what the Plaintiff was seeking was the creation of an obligation to which the parties had not agreed.
The Defendant accepted that it has obligations of good faith arising expressly under the Implementation Agreement and implied by law. Those obligations, it was said are relevant to the discharge of duties or the enjoyment of rights that occur under the Implementation Agreement if they are otherwise enforceable, but cannot be used, as the Plaintiff seeks, to impose upon the Defendant obligations that are not ambiguous but absent altogether. The Defendant argued its obligations of good faith should not be used as a basis for the Court to create obligations that do not otherwise exist in the Implementation Agreement.
[15]
Tesseract is distinguishable
The Defendant submitted that the Plaintiff's reliance on Tesseract is misplaced for three reasons. First, it was argued that this is not a case where the words used by the parties "admit of more than one possible meaning" (Tesseract at [18]). Here, parties have not attempted to agree on the regime to apply but done so ambiguously, rather they have simply not expressed themselves at all. In those circumstances, cl 34.1(f) is "incapable of any definite or precise meaning" (Tesseract at [18]).
Secondly, this case can be distinguished in that it is not a situation where the parties' mechanism for implementing the regime has failed. Instead, the parties have not even attempted to adopt a mechanism for the implementation of the regime.
Thirdly, the Defendant submitted that in these circumstances, cl 34.1(f) is no more than an agreement to agree on a regime for expert determination in future. This is said to be unenforceable on the grounds that courts will not aid enforcement of an incomplete agreement (Booker Industries at 604 per Gibbs CJ, Murphy and Wilson JJ).
[16]
Triarno is distinguishable
Contrary to the Plaintiff's reliance on Triarno in support of the notion that (in the absence of agreement between the parties) the "regime" or "procedures" to be followed are matters for the expert to determine, the Defendant argued that this case does not assist when the Implementation Agreement contains no machinery for the selection and appointment of an expert in the first place.
The Defendant distinguished Triarno on the facts. In that case, a building contract had been terminated on terms recorded in a deed. The deed provided that an independent expert would determine the value of the owner's claim. The deed expressly provided machinery for the appointment of an independent expert; it was to be "agreed upon by the parties or failing agreement, appointed by the Chairperson of the Institute of Arbitrators Australia, NSW Chapter, whose decision shall be final and binding." Despite this, the deed made no express provision for the independent expert's payment, the procedures to be followed by the independent expert in reaching their determination, or for any rights or obligations upon the parties in relation to such expert's determination.
In Triarno, two independent experts were appointed under the contractual machinery, however, at a meeting between the parties and experts, no agreement about procedures and costs was reached. An application was made to the Court to make a declaration as to the rules and procedures for the conduct of an expert determination under the deed. A distinction was drawn by Cole J between an arbitration, for which the court had power under the relevant statute to make interlocutory orders, and an expert determination, for which it had no jurisdiction to determine procedures, and stated at 307 (emphasis added):
While recognising that there may be utility in the court determining procedures to be followed in an expert determination, in my opinion the court has no jurisdiction to do so…If the parties have not by their deed agreed the procedures to be followed upon an expert determination, that is not a void the court can fill. There is no reason to imply a term that the court will determine procedures. It is a matter for either agreement between the parties, or determination by the independent experts as to the procedures to be followed.
The Defendant submitted that the issue here is that not only is the Implementation Agreement silent as to the procedures to be followed by an expert, but it also does not appoint, nor contain a mechanism for the appointment of, an expert who might determine the procedures to be followed. The situation at hand was therefore said to be distinguished from Triarno and the cases following its authority upon which the Plaintiff relied.
In the absence of agreement on the procedures for expert determination and the Court's lack of jurisdiction to determine the procedures to be followed, the Defendant submitted that the procedures are not capable of determination, rendering cl 34.1(f) void for uncertainty.
[17]
It is not open for the Court to substitute its own machinery for an expert's selection and appointment
The Defendant rejected the Plaintiff's two propositions as to why the absence of machinery for the selection and appointment of an expert does not render cl 34.1(f) unenforceable.
The first proposition, as outlined above, was that an order could be made that the Defendant "do whatever may reasonably be required" to bring about the appointment of an expert. While the Plaintiff relied on Booker Industries to support this notion, the Defendant noted that this case and those applying it each concerned agreements that contained some kind of machinery for appointing the relevant expert.
Booker Industries for example concerned a lease with an option for renewal where rent for the new term was to be agreed and, where agreement could not be reached, was to be fixed by a single arbitrator nominated by the President of the Queensland Law Society. In those circumstances, the Court held that the parties had an implied subsidiary obligation to join in procuring the nomination by the President of an arbitrator (at 606-606 per Gibbs CJ, Murphy and Wilson JJ).
The Defendant distinguished this case from the current situation because the Implementation Agreement is silent about how an expert is to be selected and appointed. In that sense, it was argued it cannot be said that the Defendant has a "subsidiary obligation" to "take steps necessary for the appointment of an expert" when the Implementation Agreement does not contain any primary obligation set out in the parties' agreement to select and appoint an expert. Where there is no primary obligation set out in the parties' agreement to select and appoint an expert, it cannot be said that there is a subsidiary obligation to "do everything necessary" to bring about an appointment in satisfaction of that primary obligation.
The Defendant argued that cl 36.9 of the Implementation Agreement also could not assist because, by contrast with cl 34.1(a) to (e), cl 34.1(f) is not prescriptive. Clause 34.1(f) contains no positive obligations on either party and is permissive rather than mandatory. Therefore the Defendant is not required under cl 36.9 to "do any act" to "give effect" to that provision.
Furthermore, the Defendant highlighted the principle that a Court will not order specific performance of an incomplete agreement. In support of this, the Defendant highlighted the majority judgment in Booker Industries (at 604-605):
It is established by authority, both ancient and modern, that the court will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future…in the present case, the lease itself provides the entire mechanism for determining the rental for the renewed term. There is no further agreement required of the parties.
By contrast, cl 34.1(f) does not provide the "entire mechanism" for the referral of a dispute to expert determination. It is silent about essential matters so is incomplete and would be inappropriate for the Court to make an order for specific performance of it.
The Defendant argued that the Court could not substitute its own machinery for the expert's selection and appointment of an expert, the Implementation Agreement does not contain machinery provisions at all. Therefore, for the Court to supplement the agreement with its own machinery would result in it re-writing the parties' bargain.
Next, the Defendant distinguished the matter at hand from Sudbrook for two reasons. First, the parties have not agreed on machinery for the implementation of a regime for expert determination, while in Sudbrook everything had been agreed but for the mechanism for fixing the price. Second, in Sudbrook one of the reasons the Court substituted its own machinery was because the parties' machinery had failed when the respondents had declined to appoint their valuer as required by the agreement, and therefore caused the breakdown (at 484B). Here, there has been no breakdown in the machinery agreed between the parties.
[18]
Discretionary considerations
The Defendant submitted that as a matter of discretion the Court should not grant the Plaintiff the relief sought, arguing there is no evidence that the Plaintiff will suffer prejudice if the relief sought is not granted. It stated that the Plaintiff will not, for example, be precluded from pursuing its claims against the Defendant in Court.
Indeed, the Defendant noted that it is preparing to commence proceedings in the Supreme Court of Queensland to seek rectification of the Implementation Agreement where it will be open for the Plaintiff to pursue by counterclaim the matters subject of the dispute it has purported to refer to independent expert determination under the Agreement.
The Defendant submitted orally that even if the matter of the underlying dispute between the parties were to be referred to expert determination, there is an essential part of that dispute which is incapable of being resolved within that process, because the data is sought to be obtained is subject to pt 9 of the Youth Justice Act 1992 (Qld) ("Youth Justice Act") (T.29/18-31). This was said to weigh in the balance on the discretionary considerations.
Section 283 of the Youth Justice Act provides that pt 9 applies to confidential information relating to a child who is participating in the restorative justice process. Relevantly, s 288 provides that a person must not disclose or use confidential information, other than under pt 9, and that to act otherwise carries a maximum penalty of two years imprisonment. Sections 289 to 297A set out authorised purposes for the dealing with that confidential information, including disclosure to the police commissioner, disclosure to ensure the child's safety, or disclosure to law enforcement entities in another jurisdiction.
The Defendant highlighted that importantly to the underlying issue and any potential determination, disclosure to resolve a dispute with the restorative justice provider is not included in the authorised purposes. Therefore, there is a statutory prohibition on the Defendant providing this information in the course of the expert determination which would mean that a central aspect of the issue the Plaintiff is seeking to resolve through the expert determination could not be resolved (T.30/14-20).
Under s 298(2), a court may make an order of disclosure in certain circumstances. The Defendant therefore noted that even if an expert determination is found to be binding, it would still require parties to approach the Supreme Court of Queensland to seek to have the Defendant compelled to disclose that information to permit the expert to determine the issue if that part of the dispute is sought to be referred (T.31/31-37).
[19]
Any expert determination should not be final and binding
The Defendant argued orally that cl 8.3 obliges the parties in respect of disputed amounts to resolve this dispute in accordance with cl 34 (T.32/26-30). Clause 34.1(a) states that parties "must attempt" to resolve any dispute in relation to the agreement in accordance with cl 34 before resorting to external mechanisms. Therefore the Defendant submitted that insofar as cl 8.3 compels resolution it is to be read subject to the express terms for cl 34.1 which merely compel an "attempt to resolve" a dispute which therefore tells against the Court concluding that an expert determination process is intended to be either binding or final (T.32/37-42). It was argued that the wording of "attempt" suggests the parties contemplated the potential of an expert determination failing and giving cause to engage an external dispute resolution mechanism (T.32/47-T.33/4).
Furthermore, it was stated that cl 34.2(c) provides that use of the resolution processes in cl 34.1 does not preclude other action being taken under a relevant law, also detracting from a finding of an expert determination being binding and final between the parties (T.32/6-13).
[20]
Consideration
In my view the clause, more particularly the sub-clause, is not void for uncertainty.
No such suggestion is made in relation to any other of the subclauses other than cl 34(f) and for good reason.
Clause 34 is drafted with its many steps to ensure in my view that litigation is to be a last resort.
That intention and objective is made plain by cl 34.1(a).
Clause 34.1(b) obliges the parties to have discussions with the view to resolution and each party is obliged to attempt this process before claiming a dispute has arisen.
However if this process is unsuccessful the party claiming a dispute must immediately notify the other in the requisite form providing reasonable detail as to the nature of the dispute (cl 34.1(c)). Thereafter and upon notification the Joint Working Group "will" be involved in an attempt to resolve the dispute, (see cl 34.1(d)). The Joint Working Group is established under cl 6.2 of the agreement and its membership and procedures are set out in more detail in cl 16 of the Operations Manual.
But a failed attempt to resolve matters under cl 34.1(d) within 10 Business days of it being referred to them the dispute "will" be "escalated" by each party to their respective Chief Executives of his or her authorised delegate (cl 34.1(d)).
If, after 10 days of the dispute being referred to the Chief Executives or 20 days after the dispute has been notified, either party may refer the dispute for independent expert determination, having specified the issue for determination.
At least two things are clear. First, the parties in providing for such a stepped dispute resolution procedure seek understandably to avoid litigation if at all possible. By the various times fixed under the provisions of cl 34 it is expected or perhaps hoped that there be a relatively prompt resolution of disputes. Secondly, it should also be observed that the processes set out in cl 34.1(b)-(e) are mandatory on the part of the parties, the terminology of those sub clauses makes that clear. The process set out however in cl 34.1(f) is in my view discretionary but once invoked by one of the parties it obliges the other party to participate in my view in an expert determination.
Clause 34.2 excludes certain matters from the dispute resolution procedure. Urgent interlocutory relief is one example. Any "action" taken by the Defendant in relation to termination (cl 14), an intervening event (cl 15), changes in the law on taxation (cl 16), pre-termination discussions (cl 17), are also excluded. None of these situations arises here.
Apart from the exclusions in cl 34.2 all other disputes are to be resolved pursuant to cl 34. In particular, cl 8.3 in my view is a very important clause because it provides that in the event of a dispute about payment, the "Disputed Amount" (defined to be an amount under cl 8.3) "will be resolved in accordance with clause 34".
This clause also provides that whilst the dispute is outstanding the payment "will be held in suspense for the duration of the dispute". Clearly this would be an important matter to be dealt with promptly but also finally for obvious reasons. Outstanding amounts found to be payable carry interest at a rate equal to the aggregate of the latest RBA cash rate plus a margin of 2 percentage points (see the definition of "Prescribed Rate" in the agreement.
Fundamental to the Defendant's submissions on uncertainty is the point that the clause is silent on a number of what is asserted are necessary items to give the clause content and therefore meaning.
One such item is the apparent absence of any certainty as to the scope of the determination. In my view the scope of any potential dispute for expert determination is clear. From the express terms of the clause, it is what one or other party specifies under cl 34.1(f) as the issue(s) for determination in the notice contemplated in that sub-clause. If one party serves a notice under this provision specifying the "issue for determination" that is what the expert is to address. If the other party disagrees with what is asserted is the dispute it can it seems to me serve a notice in the time provided by the sub-clause asserting what it says is the dispute. This is made clear by the sub-clause permitting "either" party to serve the requisite notice.
It of course must be acknowledged that the clause does not specify the mechanism for appointment of the expert or the mode or manner of the determination process nor the basis upon which the expert is to be renumerated. But in my view these omissions are not fatal and do not lead inevitably to the sub-clause being void for uncertainty.
It has been said that dispute resolution clauses should be liberally construed (Tesseract at [17]). But in any event absent an express term each contract has by necessary implication at a minimum, two implied obligations by which each party agrees to do all things necessary to enable the other party to have the benefit of the contract and a further implication obliging each party to do all that is reasonably necessary to secure performance of the contract. Add to this an overarching requirement that courts should endeavour to avoid finding a contract void unless it is so incapable of definite or precise meaning that a court is unable to attribute any particular contractual intention to the parties.
In this case in my view these implications would require the Defendant reasonably to co-operate so as to secure the appointment of an expert so that an expert determination of the dispute was achieved. To that end in my view it is incumbent on the Defendant therefore initially to co-operate in the appointment of a suitably qualified expert
The person to be appointed must be an "expert". In many if not most cases former judges are ideally suited for this task and are accordingly often appointed, but I accept that they are not the entire universe of eligible candidates.
If the Defendant for example unreasonably refused to cooperate in the selection and hence the appointment of the expert I see no reason why a court could not by specific enforcement require a party at least to co-operate for that purpose.
Once appointed the scope of the determination is the issue the subject of the notice or potentially notices. The precise process to be followed again would in my view be governed by the same implications and if parties cannot agree. As Cole J observed in Triarno, the procedures would be determined by the expert. This would include such questions as representation, the materials to be placed before the expert, and whether the dispute is to be dealt with for example solely on the papers. As to whether the rules of evidence should apply this again should be by agreement if at all possible. But it would in my view be odd given the nature of the clause absent agreement for the rules to apply. The dispute resolution clause as a whole, if at all possible, is to provide a prompt and relatively informal process for the resolution of the dispute. Absent agreement I consider the mode of determination (including the application of the rules of evidence) would fall to the expert.
As to whether the expert determination should be binding and final in my view the clause should be construed as providing that consequence. The very term, "independent expert determination" says itself a great deal about the parties' real intentions in my view. The engaging of an expert comes after several other attempts have already been made by the parties in discussions, and the interaction of the Joint Working Party has been involved along potentially with senior executives and or their representatives. The notion that if all of those processes have failed the parties upon notice being served are in my view not only to submit to the expert process but that they intend in my view to be bound by the expert who is by agreement "independent". He or she is acting no doubt honestly and impartially (Capricorn Inks Pty Ltd per McPherson J at 15). The issue is by the very terms of the clause referred to the expert "for determination" meaning in my view on a final and binding basis.
So far as the costs of the expert determination is concerned, again this is not dealt with in the clause. The agreement does not otherwise deal with cost sharing of any sort as such on any matter. However there is no tenable basis for suggesting that the parties are to be treated as anything other than equals under the agreement. It seems to me the dispute resolution clause is clearly there for the benefit of both parties and it is clearly intended that notwithstanding any dispute each party must continue to perform it's respective obligations under the agreement (cl 34.1(g)) is some indication of equal responsibility such that I consider the costs of the expert determination should as matter of construction and again consistent with one or other of the implied terms referred to be borne equally by the parties.
In the circumstances I would not find for the reasons expressed the sub-clause the subject of these proceedings void for uncertainty.
[21]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 May 2021
Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2021] SASCA 8
The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646
Thorby v Golberg (1964) 112 CLR 597
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 156
Triarno Pty Ltd v Triden Contractors Ltd (1992) 10 BCL 305
United Group Rail Services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618
Watpac Construction NSW Pty Ltd v Taylor Thompson Whitting (NSW) Pty Ltd [2015] NSWSC 780
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522
WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) 341 ALR 467
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530
Texts Cited: P Herzfeld and T Prince, Interpretation (2020, 2nd ed, Thomson Reuters)
J D Heydon, Heydon on Contract (2019, Thomson Reuters)
Category: Principal judgment
Parties: LWB Qld SBB Limited (plaintiff/first applicant)
State of Queensland (defendant/first respondent)
Representation: Counsel:
JC Hewitt (plaintiff)
MT Hickey, SJ Gibson (defendant)