Elcom Collieries Pty Ltd v Comserv Pty Ltd [2005] NSWSC 1083

Elcom Collieries Pty Ltd v Comserv Pty Ltd [2005] NSWSC 1083

Comserv did not give notice of termination to the neutral expert before the determination was issued. The 14 March 2005 facsimile was not a notice of termination but a forewarning that solicitors had been instructed to issue one. Because the deed was not terminated before publication of the determination, the deed remained on foot and Mr Markham's determination was binding and enforceable between Elcom and Comserv.

Jurisdiction
Australia
Judgment Date
26 October 2005
Procedural Posture
Contract Proceedings Seeking Declarations Concerning a Deed for Expert Determination by a Neutral Expert / Judgment in the Supreme Court of New South Wales, Equity Division
Outcome
Elcom was entitled to declarations that the deed had not been terminated and remained on foot, and that Mr Markham's determination was binding and enforceable as between Elcom and Comserv.
Legal Topics
['construction and Interpretation of Contracts' 'expert Determination' 'termination of Deed' 'binding Determination by Neutral Expert']
['contract Law' 'alternative Dispute Resolution'] ['construction and Interpretation of Contracts' 'expert Determination' 'termination of Deed' 'binding Determination by Neutral Expert']

Case Brief

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Procedural Posture

Contract Proceedings Seeking Declarations Concerning a Deed for Expert Determination by a Neutral Expert / Judgment in the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether Comserv terminated the deed for expert determination before the neutral expert delivered his determination.' "Whether the neutral expert's determination was binding and enforceable between Elcom and Comserv." 'Whether there was a proper contractual basis for termination under cl 15.1(c) or cl 15.1(f) of the deed.']

Ratio Decidendi

Comserv did not give notice of termination to the neutral expert before the determination was issued. The 14 March 2005 facsimile was not a notice of termination but a forewarning that solicitors had been instructed to issue one. Because the deed was not terminated before publication of the determination, the deed remained on foot and Mr Markham's determination was binding and enforceable between Elcom and Comserv.

Court Disposition

Elcom was entitled to declarations that the deed had not been terminated and remained on foot, and that Mr Markham's determination was binding and enforceable as between Elcom and Comserv.

Orders

  • ['Declaration that the deed has not been terminated and remains on foot.' 'Declaration that the determination of Mr Markham is binding and enforceable as between Elcom and Comserv.' 'The parties were directed to bring in short minutes of orders reflecting the reasons.' 'The Court would hear the parties on the...