711 Hogben Pty Ltd v Tadros - [2016] NSWSC 1683

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1683
Hearing dates: 16 November 2016, Further Written Submissions on 16, 17 and 21 November 2016
Date of orders: 30 November 2016
Decision date: 30 November 2016
Jurisdiction: Equity - Commercial List
Before: Beech-Jones J
Decision:
(1)   The Plaintiff’s Summons be dismissed;

(2)   Dismiss the Cross-Defendants’ application for a stay of the Cross-Claim

(3)   The parties file and exchange submissions on costs, not to exceed three pages, on or before 4pm on 2 December 2016;

(4)   The proceedings be listed before Beech-Jones J at 9.30am on Wednesday 7 December 2016;
(5)   The balance of the proceedings stand over to the Commercial List for directions on Friday, 3 February 2017.
Catchwords: SEPARATE QUESTION – plaintiff landlord challenge to expert determination made under Deed of Agreement for Lease – determination final and binding unless subject to manifest error – defendants’ cross claim seeks to enforce determination and obtain further relief – hearing of all issues arising on plaintiff’s summons severed from rest of proceedings – plaintiff sought to argue whether Determination made in accordance with Deed at different time to whether manifest error – in substance plaintiff re-litigating matter already determined – whether one party to Deed can refer dispute for determination without agreement of other – whether breach of procedural fairness in making of Determination – whether cross claim raised issues that had to be determined by expert – summons dismissed – cross claim not stayed.
Legislation Cited: Commercial Arbitration Act 1984 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited: 711 Hogben Pty Ltd v Tadros [2016] NSWCA 244
711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd
711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 1238
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dance with Mr D Limited v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332
Fidelitas Shipping Co Ltd v V/O Exportchleb (1966) 1 QB
Insurance Corporation & Ors v Gordian Runoff Ltd [2011] HCA 37; (2011) 281 ALR 593
Kioa v West (1985) 159 CLR 550
Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475
Natoli v Walker (1994) 217 ALR 201
O’Toole v Charles David Pty Ltd [1991] HCA 14; 171 CLR 232
South Australia v O’Shea (1987) 163 CLR 378
Veba Oil Supply & Trading Gmbh v Petrotrade Inc [2001] EWCA Civ 1832
Texts Cited: Spencer Bower and Handley, The Doctrine of Res Judicata (4th edition, 2009)
Category: Procedural and other rulings
Parties: 711 Hogben Pty Ltd (Plaintiff/Third Cross-Defendant)
Anthony Tadros (First Defendant/Second Cross‑Claimant)
Sharon Tadros (Second Defendant/Third Cross‑Claimant)
George Tadros (Third Defendant/First Cross‑Claimant)
Dennis Bluth (Fourth Defendant)
Bill Panopoulos (First Cross-Defendant)
Peter Panopoulos (Second Cross-Defendant)
Representation:
Counsel:
CJ Bevan (Plaintiff/Cross-Defendants)
M Hadley (First to Third Defendants/Cross-Claimants)
Solicitors:
OneGroup Legal Pty Ltd (Plaintiff/Cross-Defendants)
Harrington Maguire & O’Brien…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1683
Decision Date: 30 November 2016

CaseChat Overview and Summary

711 Hogben Pty Ltd sued Tadros in a dispute regarding an expert determination made under a Deed of Agreement for Lease. The nature of the dispute centred around whether the expert determination was final and binding unless it was subject to manifest error. The defendants, in their cross claim, sought to enforce the determination and obtain further relief. The Federal Court of Australia was tasked with deciding several key legal issues. The first was whether the determination was made in accordance with the Deed at a different time to whether manifest error. The second was whether one party to the Deed could refer a dispute for determination without the agreement of the other. The third was whether there was a breach of procedural fairness in making the determination. The fourth was whether the cross claim raised issues that had to be determined by the expert.

The court held that the plaintiff, in essence, was re-litigating a matter already determined by the expert, which was final and binding unless subject to manifest error. The court also held that there was no requirement for both parties to agree to refer a dispute to an expert for determination. Furthermore, the court found no breach of procedural fairness in the making of the determination and that the cross claim raised issues that had to be determined by the expert. Consequently, the plaintiff’s summons was dismissed, and the cross claim was not stayed. This outcome reinforces the principle that expert determinations are binding unless there is manifest error and that procedural fairness is not breached if both parties are given an opportunity to be heard before the expert.

Orders