Empire Glass and Aluminium Pty Limited v Lipman Pty Ltd

In the Federal Court of Australia, the plaintiff, Empire Glass and Aluminium Pty Limited, commenced proceedings against the defendant, Lipman Pty Ltd, for a payment dispute that arose under a contract for the construction of a glass and aluminium façade. The contract contained a dispute resolution clause that required any dispute to be referred to an expert for determination, which would be final and binding unless a party gave notice of appeal within 15 days. The defendant, Lipman, did not give such notice and instead commenced proceedings in the Federal Court. Empire Glass sought a permanent stay or dismissal of the proceedings, arguing that the contract's dispute resolution clause precluded the right to litigate the matter in court.

The primary legal issue before the court was whether the contractual dispute resolution clause precluded the right to litigate the matter in court. The court held that the clause did not preclude the right to litigate but rather imposed a condition precedent that must be satisfied before the court will intervene. The court found that the clause did not provide for the court to have jurisdiction to determine the dispute unless the condition precedent was satisfied. Accordingly, the court held that the clause did not give rise to a right to have the dispute determined by the court.

The court further held that the clause did not prevent the parties from commencing proceedings in the court. However, the court found that the proceedings were stayed until the condition precedent was satisfied, and if it was not, the proceedings would be dismissed. The court found that the clause did not provide for the court to have jurisdiction to determine the dispute unless the condition precedent was satisfied. Accordingly, the court held that the clause did not give rise to a right to have the dispute determined by the court.

The court ordered that the proceedings be stayed until the defendant gave notice of appeal within 15 days of the expert's determination, and if the defendant did not give such notice, the proceedings would be dismissed. The court also ordered that the defendant pay the plaintiff's costs of the application.