Goldspar Australia Pty Ltd v The Council of The City of Sydney

[2001] NSWCA 246

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Expert determination
3. › Binding nature of expert determination
4. › Whether determination made in accordance with terms of contract
5. › Whether expert left out of account significant claims
6. › Question of fact
7. › Coincidence in figures insufficient to establish departure
1. Appeal
2. › New arguments on appeal
3. › Whether party permitted to raise ground not taken at trial
4. › Argument foreshadowed but deliberately abandoned
5. › Whether expedient and in the interests of justice
6. › Finality of litigation
1. Evidence
2. › Discretion to exclude evidence
3. › Section 135 Evidence Act 1995 (NSW)
4. › Danger of undue waste of time
5. › Slight probative value
6. › Evidence of expert's state of mind or intention
7. › Whether discretion miscarried
1. Appeal
2. › Appeal from exercise of discretion
3. › Principles in House v The King
4. › Whether error shown in exercise of discretion

Quick Take

A party challenging an expert determination as not made in accordance with the contract must establish departure on the balance of probabilities by satisfactory inference, not mere conjecture. A near-coincidence between the determined figure and a figure derivable from part of the materials before the expert is insufficient where multiple considerations make it inherently improbable the expert acted in the manner suggested. A party that deliberately abandoned a challenge to the validity of an expert determination agreement at trial will not be permitted to raise it on appeal.