Ipoh v TPS Property No 2 & Anor [2004] NSWSC 289

Ipoh v TPS Property No 2 & Anor [2004] NSWSC 289

Clause 21.2(h)(ii) of the RSDA meant that the Incoll expert determination on the wind claims was final and binding as between Ipoh and TPS No 2. Ipoh did not allege any recognised basis for impeaching that determination. The tort formulation of the wind claims was still a claim in connection with the same dispute referred to and determined by Incoll, and could not be pursued separately. The possibility that claims against Multiplex might continue did not justify depriving TPS No 2 of the benefit of its contractual bargain. The remaining claims against TPS No 2 had to be stayed until compliance with clause 21 of the RSDA.

Jurisdiction
Australia
Judgment Date
16 April 2004
Procedural Posture
Building and Construction Claim for Damages for Breach of Contract and Negligence / Notice of Motion by the First Defendant Seeking Strike Out or Stay of Claims Based on Expert Determination and Dispute Resolution Clauses
Outcome
TPS No 2 was in substance entitled to the relief sought by its notice of motion; parties were directed to bring in short minutes of order.
Legal Topics
['expert Determination' 'stay of Proceedings' 'final and Binding Determination' 'dispute Resolution Clause' 'defects Claims' 'breach of Contract' 'duty to Warn']
['building and Construction' 'contract Law' 'negligence' 'civil Procedure'] ['expert Determination' 'stay of Proceedings' 'final and Binding Determination' 'dispute Resolution Clause' 'defects Claims' 'breach of Contract' 'duty to Warn']

Case Brief

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Procedural Posture

Building and Construction Claim for Damages for Breach of Contract and Negligence / Notice of Motion by the First Defendant Seeking Strike Out or Stay of Claims Based on Expert Determination and Dispute Resolution Clauses

Legal Issues

  1. 1 ["Whether Ipoh's wind driven rain and wind tunnel effect claims against TPS No 2 should be struck out or permanently stayed because they had been the subject of a binding expert determination under clause 21 of the RSDA." 'Whether an expert determination expressed to be "final and binding" under clause 21.2 of the RSDA permits later legal proceedings on the same dispute.' "Whether Ipoh's alternative tort claim concerning the wind claims was a claim in connection with the dispute already determined by Incoll." 'Whether the remaining claims against TPS No 2 should be stayed pending compliance with clause 21 of the RSDA.' 'Whether the possibility of continuing claims against Multiplex justified refusing a stay against TPS No 2.']

Ratio Decidendi

Clause 21.2(h)(ii) of the RSDA meant that the Incoll expert determination on the wind claims was final and binding as between Ipoh and TPS No 2. Ipoh did not allege any recognised basis for impeaching that determination. The tort formulation of the wind claims was still a claim in connection with the same dispute referred to and determined by Incoll, and could not be pursued separately. The possibility that claims against Multiplex might continue did not justify depriving TPS No 2 of the benefit of its contractual bargain. The remaining claims against TPS No 2 had to be stayed until compliance with clause 21 of the RSDA.

Court Disposition

TPS No 2 was in substance entitled to the relief sought by its notice of motion; parties were directed to bring in short minutes of order.

Orders

  • ['The Incoll determination is final and binding as between Ipoh and TPS No 2.' 'TPS No 2 is entitled to an order that the wind claims against it be struck out or permanently stayed.' 'TPS No 2 is entitled to an order that the remaining claims against it be stayed until there has been compliance with clause 21 of the...