Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC

Abigroup Contractors Pty Ltd sought leave to appeal a decision by the Supreme Court of South Australia that declined to order a separate trial on the enforceability of an expert determination. The underlying dispute arose from the construction of twin bridges in Port Adelaide, with Abigroup being the head contractor and Hardesty & Hanover LLP (HHL) providing engineering designs. The dispute specifically related to fees payable by Abigroup to HHL, which had been referred to expert determination in favor of HHL. Clause SC12 of their Consultant Services Agreement outlined a dispute resolution process that culminated in an independent expert’s determination if the dispute was unresolved after a series of meetings between the parties’ representatives.

The legal issues in the appeal centered around the enforceability of the expert determination under Clause SC12 and whether the court should have ordered a separate trial to address this issue before proceeding to the main trial. Mr. Walsh QC for the respondent argued that the decision on the separate trial was discretionary and involved no error. Conversely, Mr. Fenwick Elliott contended that the enforceability of the expert determination was a discrete issue that did not require evidence from the main trial and should be decided in advance to expedite the proceedings.

The court found that the enforceability of the expert determination was indeed a discrete issue that could be resolved without overlapping with the main trial’s evidence and factual issues. The court was persuaded by the principle that expert determinations should be honored if the parties agreed to be bound by them. The judge’s discretion in declining to order a separate trial was considered to have miscarried, as the enforceability issue was significant and should be decided in advance. Consequently, the court granted leave to appeal, allowed the appeal, and ordered a separate trial limited to the issue of whether the expert determination was final and binding on the parties.