Arida v Arida & Ors [2013] NSWSC 1051

Arida v Arida & Ors [2013] NSWSC 1051

Mr Wotton’s valuations delivered as at the inspection date rather than the contractually required date (21 August 2012) were not binding. After delivering those first valuations, his task under the contract was complete; the agreement did not imply a right or obligation to provide fresh (corrected) valuations once his mistake was identified. The subsequent valuations and correspondence were similarly not binding as they were not the product of a genuinely independent and fresh reconsideration and/or fell outside his authority under the contract. Thus, none of Mr Wotton’s valuations are binding, and a new valuer should be appointed according to the mechanism in the Heads of Agreement.

Parties
Plaintiff: Tony Arida; 1st Defendant: Sid Arida; 2nd Defendant: Joseph Arida; 3rd Defendant: George Arida; 4th Defendant: Wayne Wotton
Jurisdiction
Australia
Judgment Date
30 July 2013
Procedural Posture
Equity Construction/interpretation of Contract / Post Hearing, Reasons for Judgment With Directions for Parties to Bring in Short Minutes of Order
Outcome
Parties to bring in short minutes of order in accordance with the reasons; none of Mr Wotton’s valuations are binding; mechanism for appointment of new valuer remains operative; prima facie, plaintiff entitled to specific performance and costs, subject to considerations regarding mortgagee rights.
Legal Topics
Interpretation of Contracts, Valuation Clauses, Specific Performance, Binding Nature of Expert Determination
Contract Law Equity Interpretation of Contracts Valuation Clauses Specific Performance Binding Nature of Expert Determination

Case Brief

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Parties

Tony Arida

Plaintiff

Sid Arida

1st Defendant

Joseph Arida

2nd Defendant

George Arida

3rd Defendant

Wayne Wotton

4th Defendant

Procedural Posture

Equity Construction/interpretation of Contract / Post Hearing, Reasons for Judgment With Directions for Parties to Bring in Short Minutes of Order

Legal Issues

  1. 1 Whether the valuer’s task was complete upon making the first valuation, despite it being made as at the wrong date
  2. 2 Whether a term can be implied into the agreement that the valuer is entitled to make a new or corrected valuation after the fact
  3. 3 Whether the parties are bound by a valuation when the valuer departed from his instructions as to the valuation date

Ratio Decidendi

Mr Wotton’s valuations delivered as at the inspection date rather than the contractually required date (21 August 2012) were not binding. After delivering those first valuations, his task under the contract was complete; the agreement did not imply a right or obligation to provide fresh (corrected) valuations once his mistake was identified. The subsequent valuations and correspondence were similarly not binding as they were not the product of a genuinely independent and fresh reconsideration and/or fell outside his authority under the contract. Thus, none of Mr Wotton’s valuations are binding, and a new valuer should be appointed according to the mechanism in the Heads of Agreement.

Court Disposition

Parties to bring in short minutes of order in accordance with the reasons; none of Mr Wotton’s valuations are binding; mechanism for appointment of new valuer remains operative; prima facie, plaintiff entitled to specific performance and costs, subject to considerations regarding mortgagee rights.

Orders

  • Matter stood over for parties to draft and file short minutes of order reflecting the reasons and directions in the judgment.
  • Prima facie orders for specific performance in plaintiff’s favour, subject to addressing potential impact of enforcement by mortgagee.