711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1683

711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1683

The Landlord's challenge to the expert determination failed: the issues raised had already been determined as not constituting manifest error in accordance with the Deed and issue estoppel applied; procedural fairness was provided; the Deed allowed for unilateral referral of disputes; there was no manifest error or breach of procedural fairness. Application to stay the cross-claim was dismissed as relevant relief was not solely disputes under the Deed and a stay would risk multiplicity of proceedings.

Parties
Plaintiff/third Cross Defendant: 711 Hogben Pty Ltd; First Defendant/second Cross Claimant: Anthony Tadros; Second Defendant/third Cross Claimant: Sharon Tadros; Third Defendant/first Cross Claimant: George Tadros; Fourth Defendant: Dennis Bluth; First Cross Defendant: Bill Panopoulos; Second Cross Defendant: Peter Panopoulos
Jurisdiction
Australia
Judgment Date
30 November 2016
Procedural Posture
Equity Commercial List / Procedural and Other Rulings
Outcome
Plaintiff's Summons dismissed; application to stay Cross-Claim dismissed; balance of proceedings stood over for directions.
Legal Topics
Expert Determination, Lease Disputes, Procedural Fairness, Issue Estoppel
Equity Commercial Law Expert Determination Lease Disputes Procedural Fairness Issue Estoppel

Case Brief

Summary, issues, holding and outcome

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Parties

711 Hogben Pty Ltd

Plaintiff/third Cross Defendant

Anthony Tadros

First Defendant/second Cross Claimant

Sharon Tadros

Second Defendant/third Cross Claimant

George Tadros

Third Defendant/first Cross Claimant

Dennis Bluth

Fourth Defendant

Bill Panopoulos

First Cross Defendant

Peter Panopoulos

Second Cross Defendant

Procedural Posture

Equity Commercial List / Procedural and Other Rulings

Legal Issues

  1. 1 Whether expert determination made under Deed of Agreement for Lease can be set aside for manifest error
  2. 2 Whether procedural fairness was afforded in the expert determination process
  3. 3 Whether cross-claim should be stayed due to dispute resolution clause in Deed

Ratio Decidendi

The Landlord's challenge to the expert determination failed: the issues raised had already been determined as not constituting manifest error in accordance with the Deed and issue estoppel applied; procedural fairness was provided; the Deed allowed for unilateral referral of disputes; there was no manifest error or breach of procedural fairness. Application to stay the cross-claim was dismissed as relevant relief was not solely disputes under the Deed and a stay would risk multiplicity of proceedings.

Court Disposition

Plaintiff's Summons dismissed; application to stay Cross-Claim dismissed; balance of proceedings stood over for directions.

Orders

  • The Plaintiff's Summons be dismissed
  • Dismiss the cross-defendants' application for a stay of the cross-claim