Canaipa Developments Pty Ltd v TLC Jones Pty Ltd - [2021] QSC 237

SUPREME COURT OF QUEENSLAND

CITATION:

Canaipa Developments Pty Ltd v TLC Jones Pty Ltd [2021] QSC 237

PARTIES:

CANAIPA DEVELOPMENTS PTY LTD
(ACN 118 404 461)

(plaintiff)

v
TLC JONES PTY LTD (ACN 142 234 099) AS TRUSTEE FOR TLC SUPERMARKETS UNIT TRUST NO 2 ABN 46 746 097 161

(defendant)

FILE NO/S:

BS No 678 of 2021

DIVISION:

Trial Division

PROCEEDING:

Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2021

JUDGE:

Applegarth J

ORDER:

The matter be adjourned to a date to be fixed for the making of orders and any submissions as to costs.

CATCHWORDS:

LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where the plaintiff and defendant are parties to a commercial lease over retail premises – where a dispute arose about the outgoings payable – where a mediation agreement provided for a joint expert to be appointed to assess and determine the annual allowable expenditure incurred on outgoings under the lease – where the plaintiff seeks to set aside the expert determination – whether the expert was validly appointed – whether the expert determination is binding

AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly TXU Networks (Gas) Pty Ltd) [2006] VSCA 173, cited
Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367, cited
Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039, cited

Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385, cited
Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, cited
Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125, cited
Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575, cited
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited
Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1, cited
Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305, cited
Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89, cited
TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4, cited

COUNSEL:

A J Schriiffer for the plaintiff

M Black for the defendant

SOLICITORS:

McCarthy Durie Lawyers for the plaintiff

PM Lee & Co Lawyers for the defendant

The plaintiff (as landlord) and the defendant (as tenant) are parties to a commercial lease over retail premises. A dispute arose over the outgoings that were payable by the defendant to the plaintiff under the lease.
The defendant commenced proceedings in the District Court of Queensland, claiming it had overpaid outgoings, and the plaintiff counterclaimed, alleging that the defendant had underpaid outgoings payable to it.
The parties to that proceeding agreed to mediate and an agreement was reached. The agreement provided for a…

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: [2021] QSC 237
Decision Date: 17 September 2021

CaseChat Overview and Summary

Canaipa Developments Pty Ltd and TLC Jones Pty Ltd were parties to a commercial lease for retail premises. The dispute centred on the outgoings payable under the lease. A mediation agreement appointed a joint expert to assess the annual allowable expenditure on outgoings. Canaipa sought to set aside the expert determination, questioning whether the expert was validly appointed and whether the determination was binding. The court examined the appointment of the expert, Mr Cox, and whether he had the relevant expertise. The court concluded that Canaipa had not established that Mr Cox was not validly appointed. The court then examined the principles governing challenges to expert determinations, focusing on the terms of the parties' contract. The court noted that the availability of review depends on whether the expert has carried out the task required by the contract. Errors in judgment or opinion are less likely to be reviewed than errors about objective facts. The court concluded that the expert determination was binding based on the terms of the contract.

The court found that the expert was validly appointed and that the determination was binding. Therefore, Canaipa’s application to set aside the expert determination was dismissed. The court ordered the matter to be adjourned to a date to be fixed for the making of orders and any submissions as to costs.

Orders

Orders of the court

The matter be adjourned to a date to be fixed for the making of orders and any submissions as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Next, the plaintiff submits that it is not clear whether Mr Cox had the relevant expertise, noting that Mr Cox did not provide a copy of his CV to the parties. However, no request for his CV seemingly was made. The fact that earlier the defendant had requested and was provided with Ms Rudken’s CV is not to the point. Mr Cox’s position suggests that he had expertise in the relevant field.Conclusion on appointment issues The plaintiff has failed to establish its contention that Mr Cox was not validly appointed under the agreement. Principles governing challenges to expert determinations The question of whether or not an expert determination is binding depends on the terms of the parties’ contract.[6][6]Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335. The matter or matters that the parties have entrusted to the expert determination ultimately turns on a proper construction of the contract.[7] [7]Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89 at 333 [198]. The availability of review depends on whether the expert has carried out the task which he or she was contractually required to undertake.[8][8]Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367 at 385 [74]. If the expert in fact carried out the task in accordance with the contract, a mistake or error does not invalidate the determination.[9] This conclusion is fortified when the parties have agreed that the determination is “final and binding”. [9]Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335; Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367 at 385 [74]. Therefore, the first inquiry is to identify from the parties’ agreement the matters entrusted to the expert for determination. This requires attention to the terms of the contract in the case at hand, rather than categoric statements or rules of thumb about whether experts have the task of deciding questions of law. The authorities do, however, disclose considerations which bear upon the issue of construction. For example, matters of an evaluative nature within the expertise of an expert, involving matters of judgment, opinion or discretion, are more likely to be committed to the final determination of the expert than a question of law, particularly when the expert has no legal qualifications or experience. The authorities draw a distinction between errors in the exercise of a judgment, opinion or discretion and errors about “objective facts”. Nettle JA (as his Honour then was) addressed this kind of distinction as follows:[10] “Therein lies the distinction drawn in some of the authorities, and observed by the judge in this case, between an error in the exercise of a judgment, opinion or discretion entrusted to an expert, and an error which involves objective facts or a mere mechanical or arithmetical exercise. Subject to the contract in question, it is easier to suppose that parties to a contract contemplate that an error of the former kind be beyond the realm of review than it is to think that they intend to be fixed with errors of objective fact or in processes of mechanical calculation. … The question in each case is what the parties should be presumed to have intended, and that is to be determined objectively from the terms of the contract, bearing in mind the context in which it was created.”[10]AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly TXU Networks (Gas) Pty Ltd) [2006] VSCA 173 at [53]-[54] (footnotes omitted).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Canaipa Developments Pty Ltd v TLC Jones Pty Ltd [2021] QSC 237
PARTIES:	CANAIPA DEVELOPMENTS PTY LTD (ACN 118 404 461) (plaintiff) v TLC JONES PTY LTD (ACN 142 234 099) AS TRUSTEE FOR TLC SUPERMARKETS UNIT TRUST NO 2 ABN 46 746 097 161 (defendant)
FILE NO/S:	BS No 678 of 2021
DIVISION:	Trial Division
PROCEEDING:	Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	30 August 2021
JUDGE:	Applegarth J
ORDER:	The matter be adjourned to a date to be fixed for the making of orders and any submissions as to costs.
CATCHWORDS:	LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where the plaintiff and defendant are parties to a commercial lease over retail premises – where a dispute arose about the outgoings payable – where a mediation agreement provided for a joint expert to be appointed to assess and determine the annual allowable expenditure incurred on outgoings under the lease – where the plaintiff seeks to set aside the expert determination – whether the expert was validly appointed – whether the expert determination is binding AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly TXU Networks (Gas) Pty Ltd) [2006] VSCA 173, cited Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367, cited Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039, cited Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385, cited Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, cited Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125, cited Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575, cited Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1, cited Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305, cited Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89, cited TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4, cited
COUNSEL:	A J Schriiffer for the plaintiff M Black for the defendant
SOLICITORS:	McCarthy Durie Lawyers for the plaintiff PM Lee & Co Lawyers for the defendant