LWB QLD SBB Limited ACN 617 920 564 v State of Queensland [2021] NSWSC 462

LWB QLD SBB Limited ACN 617 920 564 v State of Queensland [2021] NSWSC 462

Clause 34.1(f) of the Implementation Agreement is not void for uncertainty. The absence of procedural machinery, appointment process or express cost sharing is not fatal; these can be implied or determined by the expert. Once the clause is invoked, the other party is obliged to reasonably cooperate in the appointment of an expert, whose determination is final and binding. Costs are to be borne equally by the parties. The court should strive to uphold commercial bargains and avoid finding contractual clauses void for uncertainty if they are capable of a meaning.

Parties
Plaintiff/first Applicant: LWB Qld SBB Limited; Defendant/first Respondent: State of Queensland
Jurisdiction
Australia
Judgment Date
04 May 2021
Procedural Posture
Equity Expedition List / Principal Judgment
Outcome
Clause 34.1(f) is not void for uncertainty; the defendant is required to cooperate in expert determination and, once appointed, the expert's decision is final and binding between the parties. Costs of the expert are to be borne equally.
Legal Topics
Construction of Contract, Dispute Resolution Clause, Expert Determination, Uncertainty in Contract
Contracts Commercial Law Construction of Contract Dispute Resolution Clause Expert Determination Uncertainty in Contract

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Parties

LWB Qld SBB Limited

Plaintiff/first Applicant

State of Queensland

Defendant/first Respondent

Procedural Posture

Equity Expedition List / Principal Judgment

Legal Issues

  1. 1 Whether clause 34.1(f) of the Implementation Agreement is void for uncertainty
  2. 2 Whether clause 34.1(f) requires mandatory participation in expert determination
  3. 3 Whether expert determination is to be final and binding

Ratio Decidendi

Clause 34.1(f) of the Implementation Agreement is not void for uncertainty. The absence of procedural machinery, appointment process or express cost sharing is not fatal; these can be implied or determined by the expert. Once the clause is invoked, the other party is obliged to reasonably cooperate in the appointment of an expert, whose determination is final and binding. Costs are to be borne equally by the parties. The court should strive to uphold commercial bargains and avoid finding contractual clauses void for uncertainty if they are capable of a meaning.

Court Disposition

Clause 34.1(f) is not void for uncertainty; the defendant is required to cooperate in expert determination and, once appointed, the expert's decision is final and binding between the parties. Costs of the expert are to be borne equally.

Orders

  • Declaration that clause 34.1(f) of the Implementation Agreement is not void for uncertainty.
  • Order that the defendant is to cooperate in the appointment of an independent expert for the purposes of clause 34.