EXPERT DETERMINATION — builder engaged to build high school — contract used New South Wales Government GC21 (Edition 2) General Conditions of Contract — expert determination clause — threshold of $500,000 before an “Issue” determined by the expert may be litigated — expert determines eight “Issues” — whether threshold applies to each Issue or the cumulative result of all Issues — Lahey Constructions Pty Ltd v Department of Education [2020] NSWSC 1158 and Lahey Constructions Pty Ltd v State of New South Wales [2021] NSWCA 69 considered at [40]-[49] — point not argued and, thus, not decided at first instance or on appeal — proper construction of expert determination clause — principles at [50]-[53] — threshold applies to each Issue — CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537 considered — Courts should follow earlier decisions unless plainly wrong, at [70]-[72] — decision not plainly wrong or otherwise distinguishable — relevant Issues “involve” a money claim — proceedings stayed in part.
WAIVER — whether Department waived reliance on threshold by filing pleadings including claims inconsistent with interpretation argued for — principles at [78]-[79] — where Department sought confirmation from builder in advance that filing of pleadings would not be taken as waiver — builder agreed not to take this point — no waiver.
COSTS — payable forthwith — r 42.7, Uniform Civil Procedure Rules 2005 (NSW) — principles at [82] — motion involved discrete issue at early stage of proceedings.
Quick Take
1Under GC21 (Edition 2) cl 71.8.2, the $500,000 monetary threshold for commencing litigation after expert determination applies separately to each Issue determined by the expert, not to the cumulative or aggregate result of all Issues determined together; the point was not decided in Lahey Constructions v Department of Education at first instance or on appeal, as it was not argued.
2A determination by an expert that dismisses or refuses a money claim 'involves paying a sum of money' within the meaning of cl 71.8.1, following CPB Contractors v Transport for NSW; 'involve' in this context means 'concern' or 'have to do with', not 'require', and the exception in cl 71.8.1 is therefore unavailable for dismissed money claims.
3Where a party expressly sought and obtained agreement from the opposing party that filing of pleadings (including cross-claims inconsistent with the interpretation argued for) would not be treated as a waiver or submission to jurisdiction, no waiver by election or estoppel arises from the filing of those pleadings.
