Foote v Barton Property Partnership No 2 - [2015] ACTCA 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Foote & Anor v Barton Property Partnership No 2
Citation:	[2015] ACTCA 53
Hearing Date:	13 August 2015
DecisionDate:	26 October 2015
Before:	Murrell CJ, Perry J and Walmsley AJ
Decision:	Appeal dismissed.
Category:	Principal Judgment
Catchwords:	CONTRACT – Dispute resolution expert determination – binding nature of the decision of the expert– whether expert properly appointed – waiver of entitlement to contest the binding nature of the decision – election not to contest the binding nature of the decision – waiver or election demonstrated by participation in expert determination process
Cases Cited:	Agricultural and Rural Finance Pty Limited v Gardiner (2008) 238 CLR 570 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2015] ACTCA 7 Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 Ciavarella v Balmer (1983) 153 CLR 438 Commonwealth v Verwayen (1990) 170 CLR 394 Foote & Anor v Barton Property Partnership No 2; Foote v Barton Property Partnership No 2 [2014] ACTSC 330 Galafassi v Kelly [2014] NSWCA 190 Hardesty & Hanover International LLC & Ors v Abigroup Contractors Pty Ltd [2010] SASC 44 Hutchinson v Roads and Traffic Authority & Anor [2000] NSWCA 332 Immer (No 145) v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Thompson v Palmer (1933) 49 CLR 507 Tropical Traders Ltd v Goonan (1964) 111 CLR 41 Vakauta v Kelly (1989) 167 CLR 568
Parties:	Andrew John Foote (First Appellant) Canberra Urodynamics Pty Ltd as trustee for the Foote Superannuation Fund (Second Appellant) Barton Property Partnership No 2 (Respondent)
Representation:	Counsel Mr P Greenwood SC with Mr M Orlov (Appellants) Mr C Erskine SC (Respondent)
Solicitors Mills Oakley Lawyers (Appellants) Kamy Saeedi Lawyers (Respondent)
File Number:	ACTCA 2 of 2015
Decision under appeal:	Court: Supreme Court of the ACT Before: Mossop M Date of Decision: 18 December 2014 Case Title: Foote & Anor v Barton Property Partnership No 2; Foote v Barton Property Partnership No 2 Citation: [2014] ACTSC 330

THE COURT:

Introduction

Dr Foote and the trustee of Dr Foote’s superannuation fund (the appellants) and the Barton Property Partnership No 2 (BPP2, the respondent) were parties to a deed of partnership (the BPP2 Deed). Dr Foote and the members of BPP2 were also members of other, related partnerships that were governed by partnership deeds that were similar to the BPP2 Deed. The BPP2 Deed and the other deeds provided that partnership disputes were to be decided by the final and binding determination of an expert or, in some classes of case, a legal expert.

Dr Foote retired from BPP2 and the other partnerships. There were discussions concerning the distribution of partnership assets…

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: [2015] ACTCA 53
Decision Date: 26 October 2015

CaseChat Overview and Summary

The dispute in *Foote v Barton Property Partnership No 2* concerned the binding nature of an expert determination regarding a contract. The parties involved were Foote and Barton Property Partnership No 2. The case came before the Supreme Court of New South Wales, Court of Appeal.

The central legal issues before the Court of Appeal were whether the decision of an expert appointed under the contract was binding, whether the expert had been properly appointed, and whether the parties had waived their entitlement to contest the binding nature of the decision, or elected not to do so, by participating in the expert determination process.

The Court of Appeal held that by participating in the expert determination process, the parties had elected not to contest the binding nature of the expert's decision. This conduct amounted to a waiver of any right to challenge the validity of the appointment or the binding nature of the determination. The Court applied principles of waiver and election, finding that the parties' actions demonstrated a clear intention to be bound by the expert's findings, irrespective of any potential defects in the appointment process.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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