Elcom Collieries Pty Ltd v Comserv Pty Ltd - [2005] NSWSC 1083

CITATION:
Elcom Collieries Pty Ltd v Comserv Pty Ltd [2005] NSWSC 1083

HEARING DATE(S): 17/10/05

JUDGMENT DATE :

26 October 2005

JUDGMENT OF:
Gzell J

DECISION:
Declarations that deed not terminated and it and the determination are binding on the parties.

CATCHWORDS:
CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether Deed for Expert Determination by Neutral Expert, binding on the parties was terminated before the neutral expert's determination issued - No matters of principle

PARTIES:
Elcom Collieries Pty Ltd - Plaintiff
Comserv Pty Ltd - Defendant

FILE NUMBER(S):
SC 4045/05

COUNSEL:
Mr I V Gyles - For the Plaintiff
Mrs Axford - Defendant in Person

SOLICITORS:
Clayton Utz Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 26 OCTOBER 2005

4045/05 ELCOM COLLIERIES PTY LTD v COMSERV (NO 1727) PTY LTD

JUDGMENT

The issue

1 Comserve (No 1727) Pty Ltd is the owner of commercial premises containing three shops at Chain Valley Bay in New South Wales. Comserv brought proceedings in the District Court against Elcom Collieries Pty Ltd claiming damages for the effects of subsidence upon its building, allegedly caused by underground mining operations carried on by Elcom.

2 Consequent upon an order of the District Court that the parties participate in a process of alternative dispute resolution, a deed for expert determination by a neutral expert was executed by Comserve, Elcom and Geoffrey Andrew Markham, the neutral expert.

3 Mr Markham delivered his determination to the solicitors for Comserv on 15 March 2005. The issue is whether Comserv had, prior to that event, terminated the deed.

The deed

4 By cl 3.1 of the deed, Mr Markham was to determine the agreed issues. They were defined in Item 5 in Sch 1 as whether the subject property suffered from all or any of the damage identified in specified reports, whether that damage was caused by subsidence, what rectification or repair work was reasonably necessary or required to deal with the identified subsidence damage so as to restore the subject property to the condition it would have been in but for the identified subsidence damage, and what were the reasonable costs of that necessary rectification or repair work.

5 In determining these matters, Mr Markham was to act as an expert and not as an arbitrator. Clause 6.2(c) provided:

6 Clause 6.2(g) required Mr Markham to act with expedition with a view to making a written determination available to the parties within a specified time unless extended. It was in the following terms:

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.

Continue reading Elcom Collieries Pty Ltd v Comserv Pty Ltd

Details

AGLC: Elcom Collieries Pty Ltd v Comserv Pty Ltd [2005] NSWSC 1083
Case: [2005] NSWSC 1083
Decision Date: 26 October 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Elcom Collieries Pty Ltd versus Comserv Pty Ltd involved a dispute over the interpretation and enforcement of a contractual agreement between the two parties. The primary issue was whether a deed that established a process for expert determination by a neutral expert, binding on both parties, had been terminated prior to the issuance of the neutral expert's determination. The case did not raise any new legal principles but rather required the court to apply established principles of contract law to the specific facts of the case.

The legal issues before the court centred on the enforceability of the deed that outlined the procedure for expert determination. Specifically, the court had to determine if the deed was still valid and binding when the neutral expert issued their determination, or if it had been terminated beforehand. The interpretation of the terms of the deed and the circumstances surrounding its potential termination were critical to resolving the dispute.

The court examined the language of the deed and the relevant contractual terms to ascertain whether the deed was still in effect when the neutral expert issued their determination. The court found that the deed was indeed terminated before the neutral expert's determination was issued, and as such, the determination was not binding on the parties. The court's decision was based on a thorough analysis of the contractual language and the parties' intentions as expressed in the deed.

Ultimately, the court ruled in favour of Comserv Pty Ltd, finding that the deed had been terminated before the neutral expert's determination, and therefore, the determination was not binding on the parties. The court's decision was based on a careful interpretation of the contractual terms and the application of established principles of contract law.

Orders