Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd

Australian Vintage Ltd (appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute resolution clause in a commercial lease of a vineyard with Belvino Investments No 2 Pty Ltd (first respondent). The dispute centred on the construction and application of a formula by an expert appointed to determine a matter under the lease.

The Court of Appeal was required to determine whether the expert's determination was open to review by the court on the basis that the expert had allegedly misconstrued the formula prescribed for their use in the dispute resolution process. This involved considering the nature of expert determinations and the circumstances under which a court may intervene in such processes.

The Court of Appeal found that the primary judge had erred in their approach. It held that where parties agree to refer a dispute to an expert for determination, and the expert acts within their mandate, the court's power to review the expert's decision is limited. However, if the expert misconstrues the contract or the formula they are required to apply, they may be acting outside their mandate, rendering their determination reviewable. In this instance, the Court concluded that the expert had indeed misconstrued the formula, leading to an incorrect determination.

Consequently, the appeal was allowed, and the orders of the primary judge were set aside. The matter was remitted to the expert for determination in accordance with the Court of Appeal's reasons. The first respondent was ordered to pay the appellant's costs of the appeal and, subject to a prior order, the costs of the proceedings below, with the first respondent potentially eligible for a certificate under the Suitors’ Fund Act 1951 (NSW).