Canaipa Developments Pty Ltd v TLC Jones Pty Ltd

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.