Foote v Barton Property Partnership No 2 - [2014] ACTSC 330

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Foote & Anor v Barton Property Partnership No 2; Foote v Barton Property Partnership No 2
Citation:	[2014] ACTSC 330
Hearing Date:	23 October 2014
DecisionDate:	18 December 2014
Before:	Mossop M
Decision:	In SC 360 of 2014: 1. The originating application is dismissed. 2. The proceedings are listed at 12 noon on 19 December 2014 for any argument in relation to costs. In SC 393 of 2014: 1. The defendant’s termination of the plaintiff’s lease on 9 May 2014 is confirmed. 2. The proceedings are listed at 12 noon on 19 December 2014 for any argument in relation to costs and for the making of any further or other orders necessary to finalise the proceedings.
Category:	Principal Judgment
Catchwords:	CONTRACT – dispute resolution ‑ expert determination –whether decision of expert binding ‑ whether expert properly appointed under partnership deed – whether decision of expert can be sustained by alternative power under the contract – whether defendant waived entitlement to contest the binding nature of the expert determination by participating in the expert determination process
Cases Cited:	Agricultural & General v Gardiner (2008) 238 CLR 570 Badgin Nominees Pty Ltd v Oneida Limited [1998] VSC 188 Glenvill Projects Pty Ltd & Ors v North North Melbourne Pty Ltd & Ors [2013] VSC 717 Legal & General Life of Australia v A Hudson P/L (1985) 1 NSWLR 314 McGrath v McGrath [2012] NSWSC 578 Nund v McWaters [1982] VR 575 Shoalhaven City Council v Firedam Engineering (2011) 244 CLR 305 500 Burwood Highway Pty Ltd v Australian Unity Limited [2012] VSC 596
Parties:	SC 360 of 2014: Andrew John Foote (First Plaintiff) Canberra Urodynamics Pty Ltd as trustee for the Foote Superannuation Fund (Second Plaintiff) Barton Property Partnership No 2 (Defendant) SC 360 of 2014: Andrew Foote (Plaintiff) Barton Property Partnership No 2 (Defendant)
Representation:	Counsel: Mr M Orlov (Plaintiff) Mr C Erskine SC (Defendant)
Solicitors: Ken Cush & Associates (Plaintiff) Kamy Saeedi Lawyers (Defendant)
File Numbers:	SC 360 of 2014 SC 393 of 2014

Introduction

By originating application dated 14 August 2014 (SC 360 of 2014) Dr Andrew John Foote and Canberra Urodynamics Pty Ltd as trustee for the Foote Superannuation Fund seek declarations and consequential orders against the defendant Barton Property Partnership No 2 (“BPP2”) to enforce a decision of an expert appointed under the deed establishing the defendant (“BPP2 Deed”).

There are also proceedings (SC 393 of 2014) which involve a tenancy dispute which were transferred from the ACT Magistrates Court to the ACT Supreme Court. The parties were in agreement that the outcome of the tenancy dispute would flow from the outcome of the proceedings relating to the expert determination and it is not necessary, at this stage, to say any more about the tenancy proceedings.

The first plaintiff (“Dr Foote”) is a medical specialist who, along with others, was a member of the defendant partnership. Dr Foote gave notice of…

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: [2014] ACTSC 330
Decision Date: 18 December 2014

CaseChat Overview and Summary

The case of Foote v Barton Property Partnership No 2 involved the plaintiff, Mr. Foote, and the defendant, Barton Property Partnership No 2, in a dispute concerning a lease agreement. The defendant terminated the plaintiff's lease on the property and the plaintiff sought to challenge this termination. The dispute was heard in the Supreme Court of New South Wales.

The primary legal issues addressed by the court were whether the decision of the expert appointed to determine the dispute was binding, whether the expert was properly appointed under the partnership deed, and whether the decision of the expert could be sustained by an alternative power under the contract. Additionally, the court examined whether the defendant waived its entitlement to contest the binding nature of the expert determination by participating in the expert determination process.

The court found that the expert was properly appointed under the partnership deed and that the decision of the expert was binding. The court also held that the defendant had waived its entitlement to contest the binding nature of the expert determination by participating in the expert determination process. Consequently, the court dismissed the plaintiff's originating application and confirmed the defendant's termination of the plaintiff's lease. The proceedings were listed for any argument in relation to costs and for the making of any further or other orders necessary to finalise the proceedings.

In summary, the court upheld the decision of the expert and confirmed the defendant's termination of the plaintiff's lease, dismissing the plaintiff's originating application and listing the proceedings for any argument in relation to costs and for the making of any further or other orders necessary to finalise the proceedings.

Orders

Orders of the court

In SC 360 of 2014:

1. The originating application is dismissed.

2. The proceedings are listed at 12 noon on 19 December 2014 for any argument in relation to costs.

In SC 393 of 2014:

1. The defendant’s termination of the plaintiff’s lease on 9 May 2014 is confirmed.

2. The proceedings are listed at 12 noon on 19 December 2014 for any argument in relation to costs and for the making of any further or other orders necessary to finalise the proceedings.

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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