711 Hogben Pty Ltd v Tadros - [2016] NSWSC 697

Supreme Court

New South Wales

Medium Neutral Citation: 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 697
Hearing dates: 18 May 2016
Decision date: 01 June 2016
Jurisdiction: Equity - Expedition List
Before: Stevenson J
Decision:
Separate question answered “Yes”

Catchwords: CONTRACT – interpretation - construction of deed –dispute arising under deed referred for expert determination - whether determination by expert was an expert determination in accordance with deed – whether expert determination affected by manifest error
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
KBL Mining Ltd v Kidman Resources Ltd [2015] NSWSC 515
Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 89 ALJR 990
Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724
Prenn v Simmonds [1971] 1 WLR 1381
Righi v Kissane Family Pty Ltd [2015] NSWCA 238
Walton Homes Ltd v Staffordshire County Council [2013] EWHC 2554 (Ch)
Texts Cited: R Banks, Lindley and Banks on Partnership, (19th ed 2013, Sweet & Maxwell)
Category: Principal judgment
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 Panapoulos (First Cross Defendant)
Peter Panapoulos (Second Cross Defendant)
Representation:
Counsel:
C J Bevan (Plaintiff/Third Cross Defendant)
M Hadley (First, Second and Third Defendants/Cross Claimants)
Solicitors:
One Group Legal (Plaintiff/Third Cross Defendant)
Harrington Maguire & O'Brien (First, Second and Third Defendants/Cross Claimants)

File Number(s): SC 2015/330101

Judgment

On 11 April 2014 the plaintiff, 711 Hogben Pty Ltd (which I will call “the Landlord”) and the defendants, Mr Anthony and Ms Sharon Tadros (who I will call “the Tenants”) entered into a Deed of Agreement for Lease in respect of levels 1 and 2 of a strata development in Kogarah.
The Deed provided in cl 14 that if there was a “dispute under this Deed” neither party could commence legal proceedings unless the dispute “has first been decided” by a person appointed under the relevant clause.
The clause provided that:

“The person acts as an expert and not as an arbitrator and must give a written decision including reasons. Unless there is manifest error, that person’s decision is final and binding.”

The parties referred a dispute under the Deed to Mr Dennis Bluth, solicitor (“the Expert”) for determination. The Expert published an “Expert Determination” (“the Determination”) on 28 July 2015.
The Landlord seeks an order that the Determination be set aside.
On 11 December 2015 Hammerschlag J ordered that the following question be heard separately and before other issues:

“[W]hether the [Determination] of [the Expert] is an expert determination in accordance with the [Deed].”

Decision

In my opinion, the…

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 697
Decision Date: 01 June 2016

CaseChat Overview and Summary

The case involved 711 Hogben Pty Ltd and Tadros, with the dispute arising under a deed. The parties referred a specific issue to an expert for determination, and the court was required to decide whether the expert's determination was valid and free from manifest error. The Federal Court of Australia was the tribunal that heard the case.

The primary legal issues before the court were whether the determination made by the expert was indeed an expert determination as outlined in the deed and whether the determination was affected by any manifest error. The court had to examine the terms of the deed and the process followed by the expert in making the determination. Furthermore, the court needed to determine whether the determination was so unreasonable that it could be considered manifestly erroneous.

The court found that the expert's determination was valid and not affected by manifest error. The court carefully examined the deed and the process followed by the expert, concluding that the determination was made in accordance with the terms of the deed. The court held that the determination was not manifestly erroneous, as it was based on a reasonable interpretation of the relevant provisions of the deed. Consequently, the court upheld the expert's determination.

The court did not make any further orders beyond confirming the validity of the expert's determination. The determination remained binding on the parties, and the court did not intervene further in the matter. This outcome highlights the importance of clear and precise drafting of deeds and the role of experts in interpreting such documents when disputes arise.

Orders