The Gull Lexington Group Pty Ltd v Laguna Bay (Banongill) Agricultural Pty Ltd

(2018) 55 VR 273; [2018] VSCA 85

Victorian Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation
3. › Asset sale agreement
4. › Expert valuation clause
5. › Whether expert required to value livestock components separately or as a unit
6. › Whether valuation 'inclusive of any progeny' required separate lamb valuation
1. Contract
2. › Expert valuation
3. › Grounds for setting aside
4. › Implied duty of impartiality
5. › Whether apprehended partiality sufficient to set aside expert valuation
6. › Whether actual partiality required
7. › Distinction between judicial officers and contractual experts
1. Contract
2. › Expert valuation
3. › Binding nature of expert determination
4. › Critical question whether valuation made in accordance with terms of contract
5. › Objective intention of parties
1. Courts and Judges
2. › Apprehended bias
3. › Application to independent experts
4. › Whether principles of apprehended bias applicable to contractually appointed experts
5. › Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 discussed

Quick Take

The orthodox position is confirmed: actual partiality, not apprehended partiality, is required to set aside a contractually binding expert valuation. Beevers v Port Phillip Sea Pilots [2007] VSC 556 is identified as an anomalous obiter dictum that is not binding. The categories of grounds for setting aside an expert valuation are not closed, but the Court considers it difficult to imagine cases where apprehended partiality alone would suffice, given that experts are frequently persons with existing professional associations with one party. An expert who values livestock components as a single unit rather than separately does not fail to comply with a contractual requirement to value 'inclusive of any progeny' — the critical question is whether the expert turned their mind to the relevant components, not whether they ascribed separate values.