Lipman Pty Ltd v Empire Facades Pty Ltd (formerly known as Empire Glass and Aluminium Pty Ltd)

[2017] NSWCA 217

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Dispute resolution clauses
4. › Multi-tiered dispute resolution
5. › Expert determination followed by litigation
6. › Whether right to litigate subject to pre-condition that expert determination invalid
7. › Whether 'does not resolve the dispute' means determination is a nullity or merely that appeal notice given
1. Contract
2. › Construction
3. › Expert determination clauses
4. › Final and binding nature of expert determination
5. › Qualification by appeal procedure
6. › Whether giving notice of appeal within specified timeframe renders determination non-final
1. Practice and Procedure
2. › Stay of proceedings
3. › Discretionary power to stay where contractual dispute resolution agreed
4. › Whether proceedings should be permanently stayed where expert determination made

Quick Take

Where a dispute resolution clause provides for expert determination followed by a right to litigate 'if the determination of the expert does not resolve the dispute', and the clause also provides that the determination is final and binding unless a party gives notice of appeal within a specified timeframe, the giving of a notice of appeal within time is sufficient to enliven the right to litigate. The opening words are connecting words, not a pre-condition requiring the expert determination to be invalid. The expression 'determination of the expert' in such clauses ordinarily means a valid determination in the A Hudson sense.