Foote and Anor v Barton Property Partnership No 2

[2015] ACTCA 53

ACT Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Dispute resolution
3. › Expert determination
4. › Binding nature of expert's decision
5. › Whether expert properly appointed
6. › Whether participation in expert determination process constitutes election or waiver of right to challenge appointment
1. Contract
2. › Dispute resolution
3. › Expert determination
4. › Agreement by conduct to be bound
5. › Whether participation in hearing and subsequent conduct evidenced agreement to be bound by determination of improperly appointed expert
1. Contract
2. › Election
3. › Inconsistent rights
4. › Whether participation in dispute resolution process under protest constitutes election between inconsistent rights
5. › Requirement for unequivocal conduct
1. Contract
2. › Waiver
3. › Participation under protest
4. › Whether continued participation in proceedings after objection constitutes waiver of right to challenge process

Quick Take

A party that objects to the appointment of an expert under a contractual dispute resolution clause and participates in the expert determination process under protest does not thereby elect to be bound by, waive its right to challenge, or agree by conduct to accept the determination. The party should clearly communicate its objections and reservation of rights before participating.