Candoora No 19 Pty Ltd v Freixenet Australasia Pty Ltd & Anor (No 2)

[2008] VSC 478

Supreme Court of Victoria

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Interrogate

Catchwords

1. Contract
2. › Expert determination
3. › Contractual valuation binding on parties
4. › Valuation certificate set aside as not in accordance with contract
5. › Whether re-determination should be remitted to original expert or new expert appointed
6. › Principles governing court's discretion
1. Contract
2. › Expert determination
3. › Contractual machinery
4. › Whether contractual machinery has failed
5. › Distinction between failure of machinery and failure of expert to properly perform task
6. › Court's power to supply alternative machinery
1. Contract
2. › Expert determination
3. › Remission to same expert
4. › Whether reasonable person would have confidence in expert's ability to reach fair and balanced conclusion
5. › Relevance of nature of error
6. › Relevance of expert's post-determination conduct
1. Arbitration
2. › Remission of award
3. › Analogy with expert determination
4. › Discretionary power to remit or set aside
5. › Whether arbitration principles applicable by analogy to contractual expert determination

Quick Take

Where a contractual expert determination is set aside, there is no presumption or 'usual consequence' that the matter must be remitted to the same expert. The court exercises a discretion considering all relevant circumstances, including whether a reasonable person would have confidence in the expert's ability to reach a fair and balanced conclusion. The nature and severity of the expert's error, and any post-determination conduct by the expert supporting the impugned determination, are relevant factors. Administrative law principles concerning remission to the same tribunal are not an appropriate analogy.