Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd

[2008] QCA 160

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Arbitration
2. › What constitutes reference to arbitration
3. › Distinction between expert determination and arbitration
4. › Whether procedural modifications to expert determination process changed its character to arbitration
5. › Whether agreement to permit cross-examination transformed expert determination into arbitration
6. › Commercial Arbitration Act 1990 (Qld), s 4
1. Contract
2. › Building, engineering and related contracts
3. › Dispute resolution clauses
4. › Expert determination
5. › Contractual provision that expert will not act as arbitrator
6. › Effect of clause requiring expert not to act as arbitrator
7. › Whether procedural variation altered fundamental character of dispute resolution process
1. Contract
2. › Construction and interpretation
3. › Objective theory of contractual intention
4. › Distinction between contractual variation and procedural manoeuvrings
5. › Whether consensus on procedural matters constituted contractual variation
1. Arbitration
2. › Arbitration agreement
3. › Requirement for agreement in writing
4. › Whether correspondence and expert directions constituted agreement in writing to arbitrate
5. › Commercial Arbitration Act 1990 (Qld), s 4

Quick Take

An express contractual provision that an expert 'will not act as an arbitrator' has operative effect and is almost conclusive evidence that the process is not a judicial inquiry; it is not displaced merely by the parties agreeing to procedural modifications such as permitting cross-examination. Procedural manoeuvrings during the course of an expert determination, including consensus on cross-examination, should not be confused with contractual variation that changes the fundamental character of the dispute resolution process.