Empire Glass and Aluminium Pty Limited v Lipman Pty Ltd [2017] NSWSC 253

Empire Glass and Aluminium Pty Limited v Lipman Pty Ltd [2017] NSWSC 253

Clause 42, properly construed, gave a party that served a notice of appeal within the time specified in clause 42.11 a contractual right to commence court proceedings under clause 42.12. The words 'If the determination of the expert does not resolve the dispute' were connecting words referring back to the appeal process, not a separate condition limited to cases where the expert determination was void or not made in accordance with the Contract. The parties remained bound by the determination unless and until it was reversed, overturned or otherwise changed.

Jurisdiction
Australia
Judgment Date
17 March 2017
Procedural Posture
Equity Technology and Construction List; Application Concerning Construction of Contractual Dispute Resolution Clause / Defendant's Notice of Motion Filed 30 January 2017 Seeking a Permanent Stay or Dismissal of Proceedings
Outcome
The defendant's notice of motion filed 30 January 2017 dismissed with costs.
Legal Topics
['construction of Dispute Resolution Clause' 'expert Determination' 'notice of Appeal' 'permanent Stay or Dismissal of Proceedings' 'right to Commence Litigation After Expert Determination']
['contracts' 'practice and Procedure' 'construction Law'] ['construction of Dispute Resolution Clause' 'expert Determination' 'notice of Appeal' 'permanent Stay or Dismissal of Proceedings' 'right to Commence Litigation After Expert Determination']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Application Concerning Construction of Contractual Dispute Resolution Clause / Defendant's Notice of Motion Filed 30 January 2017 Seeking a Permanent Stay or Dismissal of Proceedings

Legal Issues

  1. 1 ['Whether, on the correct construction of clause 42 of the Contract, an expert determination was binding on the parties or Empire was entitled to have the disputes determined by the court after giving notice of appeal.' 'Whether clause 42.12 permitted commencement of court proceedings where a party gave notice of appeal within 15 business days of the expert determination.']

Ratio Decidendi

Clause 42, properly construed, gave a party that served a notice of appeal within the time specified in clause 42.11 a contractual right to commence court proceedings under clause 42.12. The words 'If the determination of the expert does not resolve the dispute' were connecting words referring back to the appeal process, not a separate condition limited to cases where the expert determination was void or not made in accordance with the Contract. The parties remained bound by the determination unless and until it was reversed, overturned or otherwise changed.

Court Disposition

The defendant's notice of motion filed 30 January 2017 dismissed with costs.

Orders

  • ["The defendant's notice of motion filed on 30 January 2017 must be dismissed with costs."]