Elcom Collieries Pty Ltd v Brown [2005] NSWSC 1084

Elcom Collieries Pty Ltd v Brown [2005] NSWSC 1084

Mr Markham complied with cl 6.2(a) by visiting the site intending to conduct a view and conducting the only view available to him after the gates were padlocked. His use of exterior observations, photographs, floor plans, slab details, survey reports and expert reports did not make him an arbitrator rather than an expert, and did not raise any question about his independence or impartiality. Mr and Mrs Brown therefore failed to establish any breach enlivening cl 15.1(f), the notice of termination was invalid, the deed remained on foot, and the expert determination was binding and enforceable against them.

Jurisdiction
Australia
Judgment Date
26 October 2005
Procedural Posture
Proceedings for Declarations Concerning a Deed for Expert Determination by Neutral Expert / Judgment After Hearing on Whether the Defendants Were Entitled to Terminate the Deed Before the Expert's Determination
Outcome
Elcom was entitled to declarations that the deed was not terminated, the purported termination was invalid and of no effect, and Mr Markham's determination was binding and enforceable against Mr and Mrs Brown; alternative specific performance relief was refused.
Legal Topics
['construction and Interpretation of Contracts' 'expert Determination' 'termination of Deed' 'neutral Expert' 'independence and Impartiality' 'estoppel' 'unconscionable Conduct']
['contracts' 'equity' 'alternative Dispute Resolution'] ['construction and Interpretation of Contracts' 'expert Determination' 'termination of Deed' 'neutral Expert' 'independence and Impartiality' 'estoppel' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Proceedings for Declarations Concerning a Deed for Expert Determination by Neutral Expert / Judgment After Hearing on Whether the Defendants Were Entitled to Terminate the Deed Before the Expert's Determination

Legal Issues

  1. 1 ['Whether Mr and Mrs Brown were entitled to terminate the deed for alleged failure by the neutral expert to visit the subject property for a view under cl 6.2(a).' 'Whether the neutral expert acted as an arbitrator rather than as an expert contrary to cl 6.2(c).' 'Whether the neutral expert was required under cl 9.3 to notify circumstances said to affect his independence or impartiality.' "Whether the expert's determination was binding and enforceable against Mr and Mrs Brown."]

Ratio Decidendi

Mr Markham complied with cl 6.2(a) by visiting the site intending to conduct a view and conducting the only view available to him after the gates were padlocked. His use of exterior observations, photographs, floor plans, slab details, survey reports and expert reports did not make him an arbitrator rather than an expert, and did not raise any question about his independence or impartiality. Mr and Mrs Brown therefore failed to establish any breach enlivening cl 15.1(f), the notice of termination was invalid, the deed remained on foot, and the expert determination was binding and enforceable against them.

Court Disposition

Elcom was entitled to declarations that the deed was not terminated, the purported termination was invalid and of no effect, and Mr Markham's determination was binding and enforceable against Mr and Mrs Brown; alternative specific performance relief was refused.

Orders

  • ['Declaration that the deed was not terminated by Mr and Mrs Brown and remains on foot.' 'Declaration that the purported termination was invalid and of no effect.' "Declaration that Mr Markham's determination is binding and enforceable against Mr and Mrs Brown by Elcom." 'The Court declined to make orders for...