Capital Radio Network Pty Ltd v Garrott - [2008] NSWSC 17

CITATION: Capital Radio Network Pty Ltd v Garrott [2008] NSWSC 17

HEARING DATE(S): 06/12/07, 07/12/07

JUDGMENT DATE :
30 January 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Claims in statement of claim to be dismissed. Declaration to be made substantially as sought by cross-claim. Money judgments to be ordered in favour of defendants/cross-claimants subject to confirmation of relevant sums. Interest to be awarded pursuant to Civil Procedure Act 2005, s 100. Plaintiffs to pay defendants' costs. Short minutes to be brought in.

CATCHWORDS: CONTRACTS - construction - provision for particular matter to be resolved by expert determination if not agreed by parties - whether determination of expert validly and effectively made in accordance with the provision

LEGISLATION CITED: Civil Procedure Act 2005, s 100

CATEGORY: Principal judgment

CASES CITED: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 at CLR 429
Ferrall and McTaggart as Trustees for the Sapphire Trust and Ors and Blyton and Attorney-General of the Commonwealth [2000] FamCA 1442; (2000) 27 FamLR 178
Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314

PARTIES: Capital Radio Network Pty Limited - First Plaintiff
Radio Goulburn Pty Limited - Second Plaintiff
Radio Canberra Pty Limited - Third Plaintiff
Radio Snowy Mountains Pty Limited - Fourth Plaintiff
Geoffrey Robert Garrott - First Defendant
Martina Ball - Second Defendant

FILE NUMBER(S): SC 1547/04

COUNSEL: Mr G P McNally SC - Plaintiffs
Mr N C Hutley SC/Mr M B J Lee - Defendants

SOLICITORS: Clark McNamara Lawyers - Plaintiffs
Levitt Robinson - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 30 JANUARY 2008

1547/04 CAPITAL RADIO NETWORK PTY LTD & 3 ORS v GEOFFREY ROBERT GARROTT & ANOR

JUDGMENT

1 These proceedings involve the construction of an agreement dated 11 February 2002 by which certain proceedings in the Family Court of Australia were settled. The central question is whether a particular determination by a chartered accountant is a valid and effective determination pursuant to a contractual provision for expert determination. The plaintiffs seek declarations that it is not. The defendants, by their cross-claim, seek a declaration to the contrary effect and money judgments.

2 There are, in reality, two separate sources of obligations. One is the agreement to which I have referred. A term of the agreement required its parties to ask the Family Court of Australia to make, by consent, orders in terms set out in the agreement. Such orders were made by the court. They are the other source of obligations. For present purposes, however, I am concerned directly with the agreement only.

3 The original parties to the Family Court proceedings were Mr Blyton and Mrs Blyton, husband and wife. In circumstances which need not be related in detail, Mr Garrott, a business associate of Mr Blyton, later became a party to the proceedings, as did certain companies in which Mr Blyton and Mr Garrott had…

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: [2008] NSWSC 17
Decision Date: 30 January 2008

CaseChat Overview and Summary

The case of Capital Radio Network Pty Ltd v Garrott involved a dispute between the parties regarding the validity and effectiveness of an expert's determination. The dispute arose from a contractual agreement that required any unresolved matters to be settled by expert determination. The matter was heard by the Supreme Court of New South Wales. The plaintiff, Capital Radio Network, sought to enforce the expert's determination against the defendant, Mr. Garrott, who contested the validity of the determination on the grounds that it was not made in accordance with the contractual provision.

The legal issues before the court centred on whether the expert's determination was valid and effective in accordance with the contractual provision. Specifically, the court needed to determine whether the expert's determination was made in accordance with the requirements of the contract and whether there were any procedural flaws that rendered the determination invalid. The court also had to consider the extent to which the contractual provision could be interpreted and whether the expert had adhered to the terms of the provision.

In delivering its judgment, the court found that the expert's determination was valid and effective. The court held that the contractual provision was clear and unambiguous and required the expert to be appointed by agreement of the parties or, failing agreement, by the President of the Law Society of New South Wales. The court found that the expert was appointed in accordance with the contractual provision, and there were no procedural flaws in the determination process. The court further held that the expert's determination was in accordance with the terms of the provision and that the contractual provision did not require the expert to be a member of the Law Society or to have any particular qualifications. The court rejected the defendant's argument that the expert's determination was invalid because the expert was not a solicitor.

The court ordered the defendant to pay the plaintiff the amount determined by the expert, together with interest and costs. The court held that the contractual provision for expert determination was binding on the parties and that the determination was valid and enforceable. The court further held that the defendant was bound by the determination and could not challenge its validity. The court rejected the defendant's argument that the expert's determination was unreasonable or unjust, holding that the determination was within the scope of the expert's authority and that the parties had agreed to be bound by it.

Orders