Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWCA 299

Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWCA 299

A dispute as to whether or how the respondent should be compensated for additional costs under clause 24.4, absent agreement that a variation circumstance should apply, cannot be referred to expert determination under clause 25. Only upon agreement that a variation circumstance exists under clause 24.4 does expert determination become applicable; disputes as to the existence of a variation circumstance or breaches of negotiation obligations, remain within the general dispute resolution procedure (clause 19).

Parties
First Appellant: Campbelltown City Council; Second Appellant: Camden Council; Third Appellant: Wingecarribee Shire Council; Fourth Appellant: Wollondilly Shire Council; Respondent: WSN Environmental Solutions Pty Ltd trading as SITA Australia
Jurisdiction
Australia
Judgment Date
30 September 2015
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
Dispute Resolution Clauses, Variation of Fees, Operation and Interpretation of Long Term Contract, Expert Determination Procedures
Contract Law Dispute Resolution Clauses Variation of Fees Operation and Interpretation of Long Term Contract Expert Determination Procedures

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Parties

Campbelltown City Council

First Appellant

Camden Council

Second Appellant

Wingecarribee Shire Council

Third Appellant

Wollondilly Shire Council

Fourth Appellant

WSN Environmental Solutions Pty Ltd trading as SITA Australia

Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether disputes concerning the application of clause 24.4 of the Processing Contract may be referred to expert determination under clause 25
  2. 2 Proper construction of dispute resolution and variation mechanisms under clauses 19, 24 and 25 of the Processing Contract

Ratio Decidendi

A dispute as to whether or how the respondent should be compensated for additional costs under clause 24.4, absent agreement that a variation circumstance should apply, cannot be referred to expert determination under clause 25. Only upon agreement that a variation circumstance exists under clause 24.4 does expert determination become applicable; disputes as to the existence of a variation circumstance or breaches of negotiation obligations, remain within the general dispute resolution procedure (clause 19).

Court Disposition

Appeal allowed

Orders

  • Set aside the declarations and orders made by Sackar J on 6 March 2015.
  • Declare that the respondent has no entitlement to refer for determination by an expert (purportedly pursuant to cl 24.2(2) of the Contract) a dispute as to whether or how it should be compensated for additional costs, in accordance with the provisions in cl 25 of the Processing Contract dated 14 August 2006, in...