Alphater Consulting v Rozman

[2016] VSCA 111

Victorian Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Breach of contract
3. › Repudiation
4. › Whether unilateral termination of independent expert's retainer evinced intention not to be bound by dispute resolution agreement
5. › Whether wrongful termination of subsidiary engagement constitutes repudiation of wider agreement
6. › Distinction between breach of retainer and repudiation of overarching agreement
1. Contract
2. › Dispute resolution agreements
3. › Independent expert determination
4. › Three-stage valuation process
5. › Whether continued involvement of specific expert was essential term
6. › Whether agreement permitted appointment of replacement expert
1. Contract
2. › Breach of contract
3. › Repudiation
4. › Principles governing repudiation
5. › Objective test
6. › Whether repudiation is to be lightly found

Quick Take

The wrongful unilateral termination of an independent expert's retainer does not, without more, constitute repudiation of the overarching dispute resolution agreement, particularly where the agreement does not make the specific expert's continued involvement essential and the terminating party's conduct does not objectively evince an intention to abandon the agreement. A dispute resolution agreement contemplating appointment of an independent expert will generally be construed as permitting the appointment of a replacement expert where the original expert becomes unavailable.