Lepcanfin Pty Ltd v Lepfin Pty Ltd [2019] NSWSC 1328

Lepcanfin Pty Ltd v Lepfin Pty Ltd [2019] NSWSC 1328

LPL's Mandate Point was summarily dismissed because, before signing the Expert Determination Agreement, LPL had requested and agreed that the dispute be delineated by points of claim and points of defence; the Applicants' points of claim raised the penalty issue; LPL's points of defence responded to it; and the words of the Expert Determination Agreement were wide enough, in the known circumstances, to include LPL's entitlement to the increased Facilitation Fee and therefore the penalty issue. The Guarantees Issue arose out of or was connected with the Development Deed because the Top-up was created by that deed and the guarantors were also parties to it, so the parties objectively...

Jurisdiction
Australia
Judgment Date
10 September 2019
Procedural Posture
Equity Commercial List; Civil Procedure Application Concerning Summary Dismissal, Strike Out or Permanent Stay / Notice of Motion by the First to Third and Sixth to Eighth Defendants/applicants to Dismiss, Strike Out or Permanently Stay the Proceedings
Outcome
Paragraph 1 of the Summons was dismissed and the proceedings were otherwise permanently stayed, with LPL ordered to pay the Applicants' costs of the Motion and the Defendants' costs of the proceedings.
Legal Topics
['summary Disposal' 'permanent Stay of Proceedings' 'contractual Dispute Resolution Clause' 'construction of Expert Determination Agreement' 'scope of Phrase "arises Out of This Agreement"' 'guarantees and Mortgage' 'penalty Clause']
['civil Procedure' 'contracts' 'expert Determination'] ['summary Disposal' 'permanent Stay of Proceedings' 'contractual Dispute Resolution Clause' 'construction of Expert Determination Agreement' 'scope of Phrase "arises Out of This Agreement"' 'guarantees and Mortgage' 'penalty Clause']

Case Brief

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Procedural Posture

Equity Commercial List; Civil Procedure Application Concerning Summary Dismissal, Strike Out or Permanent Stay / Notice of Motion by the First to Third and Sixth to Eighth Defendants/applicants to Dismiss, Strike Out or Permanently Stay the Proceedings

Legal Issues

  1. 1 ['Whether the expert exceeded her mandate by determining whether the Facilitation Fee Top-up was a penalty.' 'Whether the parties agreed, by the exchange of points of claim and points of defence and the Expert Determination Agreement, that the penalty issue formed part of the dispute referred to the expert.' "Whether LPL's claim on the Mandate Point was so untenable that it should be summarily dismissed." 'Whether the Guarantees Issue was a dispute that arose out of the Development Deed and therefore had to be dealt with under the expert determination regime rather than litigated in Court.' 'Whether the Court should exercise its discretion to stay the balance of the proceedings.']

Ratio Decidendi

LPL's Mandate Point was summarily dismissed because, before signing the Expert Determination Agreement, LPL had requested and agreed that the dispute be delineated by points of claim and points of defence; the Applicants' points of claim raised the penalty issue; LPL's points of defence responded to it; and the words of the Expert Determination Agreement were wide enough, in the known circumstances, to include LPL's entitlement to the increased Facilitation Fee and therefore the penalty issue. The Guarantees Issue arose out of or was connected with the Development Deed because the Top-up was created by that deed and the guarantors were also parties to it, so the parties objectively...

Court Disposition

Paragraph 1 of the Summons was dismissed and the proceedings were otherwise permanently stayed, with LPL ordered to pay the Applicants' costs of the Motion and the Defendants' costs of the proceedings.

Orders

  • ['Paragraph 1 of the Summons is dismissed and the proceedings are otherwise permanently stayed.' "The Plaintiff to pay the Applicants' costs of the Notice of Motion, as agreed or assessed." "The Plaintiff to pay the Defendants' costs of the proceedings, as agreed or assessed."]