The Plaintiff, to which I shall refer as "TWS", entered into a contract with the First Defendant (the "Council") for the construction of works at Bodalla Sewage Treatment Plant (the "Contract"): CB 1-93. The Contract is in the form of a Government Works Contract (GC21 Ed 2) dated 10 January 2017.
The Contract contains provisions dealing with expert determination of disputes: see CB 43-45, 76-77.
On 20 March 2018, a letter of instruction (CB 143-162) was sent to Mr Neil Turner, an engineer, appointing him as the expert (the "Expert") pursuant to the Contract to determine the following disputes arising out of the Contract:
1. Internal plant road (the "Road Issue").
2. Clay liners (the "Liners Issue").
3. Uni-flanges joints (the "Flanges Issue").
4. Decant pump capacity (the "Pump Issue").
I shall refer to (2), (3) and (4) collectively as the "additional disputes".
On 20 July 2018, Mr Turner provided his determination (the "Expert Determination"): CB 475-520. He answered the questions posed favourably to the Council in respect of the Road Issue and Liners Issue, and adversely to the Council in respect of the Flanges Issue and Pump Issue.
TWS brought proceedings in the Technology and Construction List of this Division seeking declarations in relation to the validity of Mr Turner's Expert Determination, and as to the issues relevant to the Roads Issue. The Council is the First Defendant and opposes the relief sought. Mr Turner is the Second Defendant and, as is common in these situations, he has filed a submitting appearance.
An order was made by Ball J for Separate Questions to be determined on the basis of the Statement of Agreed Facts and Documents.
The questions posed for separate determination are:
"(a) Is the Clay Liners Determination void?
(b) If the answer to question (a) is "yes", should these proceedings be stayed (or, in the alternative, dismissed) insofar as they seek the relief set out in prayer 3 of the Plaintiff's Summons filed 13 September 2018?
(c) What declarations and orders (including as to costs) should be made in light of the answers to the preceding questions?"
TWS contends that the Expert had no jurisdiction or authority from the Contract to determine the Liners Issue (or the Pump and Flanges Issues) by reason of the terms of cls 69-71 in conjunction with the Expert Determination Procedure (the "EDP") referred to in cl 71, which is annexed as sch 5 to the Contract.
Clauses 68, 69.3 and 70 make it clear that the dispute resolution procedure set out in cls 69 and 70 must be followed before an "Issue" (an "Issue") can be referred for Expert Determination. Clause 71 is in the following terms:
"71 Expert Determination
.1 The representative of the Principal for the purposes of clause 71 is the person named in Contract Information item 52. This person may differ from the Principal's Authorised Person.
.2 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. If they cannot agree within 28 days after receipt of a notice under clause 70.3, the Expert will be nominated (on the application of either party) by the person named in Contract Information item 53. That person must not nominate:
.1 an employee of the Principal or the Contractor;
.2 a person who has been connected with the Works or the Contract; or
.3 a person who the Principal and the Contractor have already considered and not been able to agree on.
.3 When the person to be the Expert has been agreed or nominated, the Principal, on behalf of both parties, must engage the Expert by a letter of engagement (with a copy to the Contractor) that sets 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.
.4 The Principal and the Contractor must share equally the Expert's fees and out-of-pocket expenses for the determination, and bear their own costs.
.5 The procedure for Expert Determination is set out in Schedule 5 (Expert Determination Procedure).
.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.
.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 the amount stated in Contract Information item 54, calculated without having regard to:
.1 any interest that may be payable; and
.2 any amount that has been 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."
(Emphasis added)
The EDP (sch 5 of the Contract) is in the following terms:
"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:
.3 Is there an event, act or omission which gives 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?
.4 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?
.5 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.
2 Submissions
.1 The procedure for submissions to the Expert is as follows:
.1 The party to the Contract which referred the Issue to Expert Determination must make a submission in respect of the Issue, within 15 Business Days after the date of the letter of engagement of the Expert referred to in clause 71.3 of the GC21 General Conditions of Contract.
.2 The other party must respond within 15 Business Days after receiving a copy of that submission or such longer period as the other party may reasonably require, having regard to the nature and complexity of the Issue and the volume of the submission. If the parties do not agree on that longer period, the party desiring the longer period may make a submission on the point to the Expert, within the time specified by the Expert, and the Expert will promptly determine any extra time permitted. The response to the submission in clause 2.1.1 may include cross-claims.
.3 The party referred to in clause 2.1.1 may reply to the response of the other party, but must do so within 10 Business Days or such longer period as that party may reasonably require (in the same terms as in clause 2.1.2) after receiving the response, and must not raise new matters.
.4 The other party may comment on the reply, but must do so within 10 Business Days or such longer period as that party may reasonably require (in the same terms as in clause 2.1.2) after receiving the reply, and must not raise new matters.
.2 The Expert must ignore any submission, response, reply, or comment not made within the time given in clause 2.1 of this Expert Determination Procedure, unless the Principal and the Contractor agree otherwise.
.3 The Expert may request further information from either party. The request must be in writing, with a time limit for the response. The Expert must send a copy of the request and the response to the other party, and give the other party a reasonable opportunity to comment on the response.
.4 All submissions, responses, replies, requests and comments must be in writing. If a party to the Contract gives information to the Expert, it must at the same time give a copy to the other party. All documents to be sent to the Principal under this Expert Determination Procedure must be sent to the relevant person at the relevant postal or other address stated in Contract Information item 52.
3 Conference
.1 The Expert may request a conference with both parties to the Contract. The request must be in writing, setting out the matters to be discussed.
.2 The parties agree that such a conference is not to be a hearing which would give anything under this Expert Determination Procedure the character of an arbitration.
4 Role of Expert
.1 The Expert:
.1 acts as an Expert and not as an arbitrator;
.2 must make its determination on the basis of the submissions of the parties, including documents and witness statements, and the Expert's own expertise; and
.3 must issue a certificate in a form the Expert considers appropriate, stating the Expert's determination and giving reasons, within 16 weeks, or as otherwise agreed by the parties, after the date of the letter of engagement of the Expert referred to in clause 71.3 of the GC21 General Conditions of Contract.
.2 If a certificate issued by the Expert contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures, a mistake in the description of any person, matter or thing, or a defect of form, then the Expert must correct the certificate."
"Issue" is defined in cl 79 (CB 51) as: "Any issue, dispute or difference raised by either party under clause 69".
Also of some relevance is cl 63, which deals with set off:
"63 Set-off
.1 If the Principal claims a sum, including a debt due, in connection with the Contract or any other contract between the Principal and the Contractor, the Principal may:
.1 withhold, deduct or set-off the claimed sum against any amount to which the Contractor is otherwise entitled in connection with the Contract; and
.2 make a demand against the Undertakings provided under the Contract for any amount of the claimed sum in excess of the amount to which the Contractor is otherwise entitled."
See, also, the words preceding cl 69 under the heading "Issue Resolution", which I shall refer to as the "introduction to cls 69-72":
"Generally, the aim of the Contract is for the parties to resolve matters through discussions as soon as possible and within the times specified. Further steps are only needed if the representatives of the parties who are involved in day to day management of the Contract are unable to resolve matters themselves."
TWS maintains that cross claims that are not connected with the subject matter of the Issue advanced by the moving party, and that have not been through the procedure specified in cl 69, cannot be advanced before the Expert and that, by reason of cl 71.6, the Expert had no jurisdiction to deal with the additional disputes.
The Council's principal response to that contention is that it attempts to read into the Contract restrictions that are not found in it and which are inconsistent with what is there. Mr Robertson's case is neatly summarised by him as: "'any' in cl 71.6 means 'any'." The Council's alternative argument is that if, contrary to its principal argument, there are restrictions of the type advanced by TWS, the parties reached agreement on 20 March 2018 through an exchange of emails that the three additional disputes would be referred to Mr Turner as part of the one determination. The emails are short and I shall set out the substance of them. The first from Mr Verma representing the Council to Mr Mark Wilson, the Senior Executive of TWS, sent on 17 March 2018 (CB 135), is in the following terms:
"I forward attached with this email is the fee proposal received from Mr. Neil Turner earlier this morning. Please confirm that TWS agree with the fee proposal, but the compressed time line may not be applicable in view of the latest development after receipt of your last letter.
In view of the latest letter of your dated Friday 16 March 2018, on all the three defects that are also being contested by TWS and have not been accepted as defects in spite of me (along with Mr Brett Corven of ESC) as the PSE on behalf of the Principal, in good faith and without prejudice basis, put on the table during our last SE meeting on Tuesday 13 March 2018.
I would propose that all three defects (defects in Clay liner as constructed, Capacity of Decant Pump as supplied and installed, and supply and installation of UNI flange joints in place of Flange to flange connection for DICL pipe works) should also be referred to the Expert so that in one expert determination all major issues between the Parties (the Principal and the Contractor) would be resolved finally with certainty.
We may have to retain time line as per the Contract (Schedule - 5) and not the compressed time line as proposed by Mr Turner in his fee proposal dated 16 March 2018.
This is FYI and confirmation.
I would appreciate your response by close of business (by 5.00 pm) Monday 19 March 2018, so that a letter of engagement with appropriate time line is issued to Mr Turner by end of Tuesday 20 March 2018."
(Emphasis added)
Mr Wilson's response of 20 March 2018 (CB 140) is in the following terms:
"Firstly, TWS do accept the defects as such the principal says they are so - however we contest the suggestion that these defects are at our risk, comments noted about in good faith and without prejudice, likewise herein.
We accept in the interests of project progression that all three items you note should also be included. I refer you to the CAP letter of response expected to PAP this morning as requested.
The contract communication issue as noted by PAP due to be raised to SE and as per our general discussions should also be referred to the Expert, particularly in light of the repeated direct correspondence from Brett Corven, most recently of last night, and the blatant mistruth about his earlier correspondence being cc'd error - it was directly and specifically addressed, to myself included.
In the interests of fairness to all parties, I also request that an extension of time without any cost implication be applied on the contract until such time as the practical aspects of the project can continue once the essential requirements of same are physically resolved-- the threats of Brett however real are neither indicative of cooperation not conducive to same."
(Emphasis added)
On 20 March 2018 the Council sent a letter of engagement to Mr Turner: see CB 143-162.
TWS disputes that the exchange of emails between the Council and TWS (between 17 and 20 March 2018 - "the March Exchange") gave rise to a binding agreement. A number of matters relevant to that issue are agitated in the submissions of both Mr Robertson and Mr Neggo.
I shall endeavour to summarise Mr Neggo's contentions in relation to Question 1:
1. The dispute clauses express a clear intention that the parties must attempt to resolve their disputes before they are sent to an expert for determination or to Court, and if the procedures mandated by the Contract are not met, the dispute cannot be referred for expert determination: see Hardesty & Hanover International LLC v Abigroup Contractors Pty Ltd [2010] SASC 44; (2011) 27 BCL 122.
2. The Expert must follow the EDP. That procedure does not allow for determinations on cross claims that are not responsive to an Issue. In this case the Issue was the Road Issue and none of the additional disputes relate to the Road Issue.
3. It is not permissible for the Council to raise separate discrete claims that have no factual or legal overlap with the Road Issue and which have not been advanced through the contractual dispute resolution procedure. Hence, the Expert did not have jurisdiction to deal with the additional disputes.
4. Mr Neggo accepted that the position advanced by TWS is different to the position in ordinary litigation, but he submitted that:
1. It could not have been the intention of the parties to permit a cross claim (or set off) of any kind.
2. The construction contended for by the Council would lead to an uncommercial result and be capable of working great commercial inconvenience. He said that the Council's approach would give to any respondent a "free ranging ability" to incorporate literally any dispute, whereas the applicant in respect of any such issue has no such free ranging ability. That, he said, was anomalous and cannot have been the intention of the parties.
1. Mr Neggo submitted that the expert determination regime is a creature of contract and the Expert's Determination is amenable to attack where the Expert has acted outside the scope of the Contract pursuant to which he was appointed. In addition to Hardesty (supra), Mr Neggo drew attention to the following cases: Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646; Savcor Pty Ltd v State of New South Wales [2001] NSWSC 596; (2001) 52 NSWLR 587.
2. TWS accepted by a formal concession noted on the Questions for Separate Determination that if it was successful in its attack on the Expert Determination in relation to the additional disputes, none of the determinations, even those on which TWS had been successful, could stand.
I should note that in relation to 18 and (5) above, Mr Robertson offered no challenge to the principles enunciated.
In relation to Electricity Generation (supra), the majority (French CJ, Hayne, Crennan and Kiefel JJ) at [35] reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract:
"The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties … intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience"."
(Footnotes omitted)
It should also be noted that, as the Expert came to deal with the issues, he approached the matter on the basis that TWS was the proponent or claimant on the Road Issue (i.e. it was the Issue within the meaning of cls 69-71 of the Contract) and that the additional disputes were cross claims ventilated by the Council. The letter of engagement (CB 143-145) did not frame the questions in that way but, rather, referred to them as the four "Issues". At one point during oral argument Mr Neggo sought to raise as a further contention that the additional disputes were not correctly characterised as cross claims but were really Issues advanced by the Council. However, he expressly abandoned his attempt to introduce this as a further issue at the hearing (see T17.18-20) and I proceed upon the basis that the Liners, Pump and Flanges Issues were correctly treated by the Expert as cross claims brought by the Council.
Mr Robertson's arguments can be summarised thus:
1. The words used in cl 71.6 permit the party against whom the Issue is advanced to raise any cross claims, set off or defence. There are no limitations of the type advanced by TWS. "Any" means "any".
2. "Defence, set off and cross claim" are technical legal terms with a well-known meaning and technical terms "must have their legal effect unless the contrary is made perfectly clear": Brett v Barr Smith (1919) 26 CLR 87, 93 per Isaacs J.
3. Mr Neggo has attempted a number of different formulations of how he submits cl 71.6 is to be read. The lack of precision tells against the Court accepting that some words should be read into cl 71.6.
4. There is no warrant for reading in the words proposed by TWS because there is nothing absurd or obviously unintended in the clause - the words used are plain words: see Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297; (2011) 15 BPR 29,545 at [14]-[18] per Basten JA with whom McColl and Campbell JJA agreed.
5. There is nothing uncommercial in the result if the words are given their plain meaning. In fact, submits Mr Robertson, it is the approach contended for by TWS which leads to an uncommercial result.
6. The only arguable basis advanced by TWS for restricting the words of cl 71.6 is the content of sch 5 cl 1, but the argument is flawed because it fails to take into account that the procedure identified in cl 1 of the EDP in sch 5 is the procedure dealing with Issues not cross claims. True it is that sub-cl 1.1.2.4 of sch 5 does explain how, in relation to an Issue, an estoppel, waiver, accord or satisfaction (and set off, cross claim or other legal types) is to be dealt with in respect of a right established upon consideration of the Issue in question, but cl 1 of the EDP is not purporting to exhaustively specify how the Expert should deal with a cross claim. This is highlighted by the fact that where the Expert determines that the claimant has failed to establish a right, TWS's argument would mean that the Expert could not award any amount in favour of the cross claimant because he would answer sub cl 1.1.1 "no".
I accept Mr Robertson's submissions in relation to the construction of the Contract. There is no reason to restrict the words in cl 71.6 by words that are not found in it (Miwa supra), and see also Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5; Smith v Cooke [1891] AC 297 at 299 per Lord Halsbury LC; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310, 313-314 per Kirby P. The technical words should be given their normal technical meaning: Brett v Barr Smith (supra). It has been accepted for a very long time that a cross claim does not have to bear any relationship to the claims put forward by the plaintiff or applicant: see Gray v Webb (1882) 21 Ch D 802; and see Civil Procedure Act 2005 (NSW) s 22 and Supreme Court Act 1970 (NSW) s 78 (since repealed). There is no reason not to treat the parties as importing into their agreement the usual technical (legal) meaning of "cross claim". The width of the phrase "cross claim" gains further support from the very wide definition of "set off" in cl 63, since it permits set off of amounts due even under other contracts, i.e. there is no requirement that the set off have any relationship with the Issue.
Whilst it is clear that the Contract requires that the processes set out for an Issue must be followed, it does not seem unlikely or odd that the parties would accept that once an Issue is to go to an expert for determination (i.e. the threshold for a form of litigation has been passed) that the other party (i.e. the party defending the claim) should be free to raise whatever claim or dispute it wishes to raise. I accept that parties to a contract might agree upon a different regime but there is nothing inherently problematic about them adopting the approach for which the Council contends, particularly since that is what is permitted in our Court system.
Mr Robertson claimed that there was an elasticity in Mr Neggo's submissions concerning the supposed content of the phrase "cross claim" in cl 71.6. In para 30 of his written submissions, Mr Neggo described a valid cross claim as one with a "factual legal overlap". In oral submissions Mr Neggo said (at T26.3-5):
"NEGGO: …it is the case that the only thing that can be advanced by way of cross claim is something relevant to the original roads issue per se…"
At T26.21-31 Mr Neggo agreed that the substance of his argument was that the other party could not bring a cross claim unless it had been through the dispute resolution procedure and the cross claim related to the subject matter of the Issue and the particular topic underlying the Issue. Thus, in the case of an issue about road levels, the only cross claim that could be heard on this approach would relate to the level of the road not, for example, to an allegation that improper materials had been used by the Contractor.
It seemed to follow on Mr Neggo's case that there would be almost no work for the words "cross claim" to do at all (see T6.40-43 and T25.50 - T26.7), although he appeared to resile from that at T53.23-28.
It will be observed that the EDP does not set out any specific procedure for how cross claims are to be determined, save insofar as they respond to an Issue, but cl 71.8 clearly envisages that "matters" will be determined by the Expert and some meaning has to be given to the right of the recipient of a claim to raise cross claims as well as set off and defence, and I agree that it would be most impracticable if the Expert could not award the cross claimant appropriate relief where it raises an issue.
TWS claims that to permit the other party to raise all sorts of issues unconnected with the dispute that it seeks to have determined is likely to cause procedural unfairness. The Expert can extend the time for a response by the claimant, so if there were to be multiple issues leading to the need for greater time on the part of the claimant, then that could be accommodated. Incidentally, whilst this is not pertinent to the construction issue, there is no suggestion in this particular case that the claimant was not fully appraised of the additional disputes that the Council wanted to ventilate - it was the subject of the email from Council to TWS and TWS' email of 19 March 2018 detailing responses on those disputes: see CB 136-139.
It follows that the Expert was entitled to deal with the additional disputes by reason of the terms of the Contract, and the Expert Determination is not therefore void.
Before considering the Council's alternative argument, I need to explain a feature of this case that produces a rather surprising consequence identified by Mr Robertson at T41-43 and T44.25, namely that determination of the Separate Questions has no present utility. TWS and the Council are agreed that, notwithstanding the contractual restrictions on disputes progressing to the Court in respect of matters the subject of expert determination (see cl 71.8), those restrictions do not apply here. Thus, the Council accepts that TWS is not precluded from advancing its claims in respect of the Road Issue and the Liners Issue, even if the Expert's Determination was valid. The Council is precluded from challenging the findings adverse to it on the Flange and Pump Issues because it did not commence litigation within the 56 days specified in cl 71.9. Nor is TWS precluded from challenging the validity of the Council's termination of the Contract. The assertion by TWS that the Expert Determination is invalid undermines the two results favourable to TWS and is not required for TWS to progress to a Court hearing on the two issues on which it failed.
I asked Mr Neggo why there was any need to determine whether the Expert Determination was void, since if it was not void then TWS has succeeded on two of the Issues and is not precluded from now litigating the Liner Issue (and Road Issue), and it would only be if the Council wished to contest the Flange and Pump conclusions that those would need to be re-ventilated, but if the determination on the three additional disputes was held void then they would all need to be the subject of a new expert determination. The only explanation of any substance related to past uncertainty as to whether the Council would agree that both matters on which TWS was unsuccessful could be heard in this Court: see T56-58, T59.25 - T60.37, T62.39, T63.49, T66.10-11 and T68.2-5. Mr Robertson confirmed that the Council did not contend otherwise: T44.13-26, T60.1-12 and T66.15.
I am conscious of the desirability of the Court determining all matters in issue between the parties, but having regard to my conclusion in respect of the terms of the Contract and the absence of practical utility of this separate determination, I shall endeavour to express my views on the Council's alternative argument briefly.
In my view, the March Exchange evidences an agreement between two commercial parties that the Expert could determine the Road Issue and the additional disputes in the one hearing. I think that the context provides sufficient evidence of an intention to create a binding contract, since not only were emails exchanged on a matter of importance but this was at a time where, to Mr Wilson's knowledge, the Council was in the process of retaining and instructing the Expert. I do not accept that, by making reference to a letter yet to be sent to the Council by someone else in the TWS organisation, the Senior Executive for TWS (Mr Mark Wilson) was qualifying or limiting TWS' agreement as expressed in his email of 20 March 2019. The only portion of that letter which could constitute a qualification is cl 15 (CB 137), but it is opaque to say the least and I think it is insufficient to undermine the consensus reflected in the exchange of emails between 17 and 20 March 2019.
This leaves the question of certainty or completeness. TWS' argument is that the March Exchange between Mr Verma and Mr Wilson left open important matters and could not be viewed as complete.
Correspondence soon after the acceptance by TWS on 20 March 2018 highlights that the question of how the additional disputes were to be dealt with at the Determination had not been agreed. I have earlier referred to the fact that the letter of engagement referred to all disputes as "the four Issues". The lack of agreement on the question as to how the additional disputes were to be characterised (i.e. as Issues or cross claims) is demonstrated by Mr Verma's email (CB 168) in which he said: "We must agree that TWS would be the Claimant for all the four Issues …", and the correspondence at CB171 - 173. However, the attack on the Expert Determination is not on the procedure followed but the asserted lack of jurisdiction. What was agreed by the March Exchange was that the Expert could be engaged to determine the additional disputes in the one determination together with the Road Issue. The procedure to be adopted was a matter that could be either covered by the EDP, by fresh agreement or, in the absence of such, determined by the Expert: see Fletcher Construction Australia Ltd v MPN Group Pty Ltd (Unreported, NSWSC, Rolfe J, 14 July 1997) at 20-23.
It follows that even if the Contract did not provide for a determination on the additional disputes there was, by the March Exchange, a later agreement by the parties to the same effect.
In view of my conclusions, the answer to:
1. Question 1 is "No";
2. Question 2 is "Does not arise".
The answer to Question 3 is that prayer 1 of the Summons should be dismissed. The Defendant sought an order that the Plaintiff pay the Defendant's costs of the Separate Questions if the Defendant was successful in resisting the Plaintiff's contentions. Mr Neggo did not resist that contention. The Plaintiff, having failed on the Separate Questions, should pay the Defendant's costs of this hearing.
[2]
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: 29 October 2019
Parties
Applicant/Plaintiff:
Poonindie Pty Ltd trading as Ted Wilson and Sons (TWS)