Ipoh v TPS Property No 2 Pty Ltd - [2004] NSWSC 289

CITATION: Ipoh v TPS Property No 2 & Anor [2004] NSWSC 289

HEARING DATE(S): 10 March 2004

JUDGMENT DATE:
16 April 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [105] and [106] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - breach of contract - negligence - expert determination clause - power to stay proceedings - whether claims should be struck out or stayed on basis that they have been the subject of binding expert determination - whether expert determination is final and binding - meaning of "final and binding" - whether alternative tort claim was subject of expert determination

LEGISLATION CITED: Corporations Act 2001 (NSW)

CASES CITED: Savcor Pty Ltd v State of New South Wales (2001) 52 NSWLR 587
Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003] NSWSC 1134
Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314
Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd [2001] NSWSC 405

PARTIES :
Ipoh Limited (Plaintiff)
TPS Property No 2 Pty Limited (Defendant 1)
Multiplex Limited (Defendant 2)

FILE NUMBER(S): SC 55049/03

COUNSEL:
G Inatey SC/B McManus (for plaintiff)
D P F Officer QC/J W Orsborn (for first defendant)

SOLICITORS: Henry Davis York (for plaintiff)
Holding Redlich (for first defendant)
Minter Ellison (for second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

16 April 2004

& MULTIPLEX LIMITED

JUDGMENT

HIS HONOUR:

Introduction

1 The plaintiff (“Ipoh”) sues the defendants (respectively “TPS No 2” and “Multiplex”) for damages for breach of contract and negligence in relation to the Galeries Victoria Retail Centre (“the retail centre”), located between Pitt and George Streets, near Park Street, in Sydney.

2 The retail centre was developed pursuant to an agreement known as the Retail Stratum Development Agreement (“RSDA”), made on 6 May 1998 between Ipoh and Trust Company of Australia Limited (“TCA”). On the same date, TCA entered into a building contract with Multiplex (“building contract”), whereby Multiplex agreed to design and construct a complex that included both the retail centre and an office tower.

3 TPS No 2 now stands in the place of TCA. Pursuant to s 601 FT of the Corporations Act 2001 (NSW), the RSDA has effect as if TPS No 2 were a party to it.

4 It is common ground that, under the building contract, Multiplex assumed on a “back to back” basis the liabilities of TCA and, now, TPS No 2 to Ipoh under the RSDA.

5 TPS No 2 seeks orders that:

(1) Certain of Ipoh’s claims against it, known as the “wind claims”, be struck out , or alternatively permanently stayed, upon the basis that they have been the subject of a binding expert determination under clause 21 of the RSDA; and

The wind claims

6 Ipoh…

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: [2004] NSWSC 289
Decision Date: 16 April 2004

CaseChat Overview and Summary

The case involved Ipoh, the plaintiff, and TPS Property No 2 Pty Ltd, the defendant. The dispute centred on the construction of a building, with Ipoh alleging breaches of contract, negligence, and other claims against TPS. The matter was heard in the Supreme Court of New South Wales. Ipoh sought damages for defects in the construction, claiming that TPS had failed to meet contractual obligations and had acted negligently. TPS argued that Ipoh's claims were subject to an expert determination clause in their contract and had already been resolved by a binding expert determination, thus seeking to have Ipoh's claims struck out or, alternatively, stayed.

The court was required to determine whether Ipoh's claims should be struck out or stayed because they had already been the subject of a binding expert determination. The primary issue was the interpretation of the expert determination clause and whether it rendered the claims final and binding. Additionally, the court had to consider whether the alternative tort claim made by Ipoh was also subject to the expert determination. The court examined the terms of the expert determination clause, the nature of the expert determination process, and whether the expert determination was indeed final and binding on the parties.

The court held that the expert determination clause did not make the claims final and binding in the sense that it precluded further legal proceedings. The court reasoned that the clause did not explicitly state that the expert's determination would be final and binding on the parties in a legal sense. Instead, it provided for an expert to determine the issues, and the parties were to be bound by the expert's determination. The court found that this did not equate to a legal finality that would prevent Ipoh from pursuing its claims in court. Furthermore, the court determined that the alternative tort claim was not subject to the expert determination clause, as it was not a claim that could be referred to an expert under the terms of the clause.

The court ordered that Ipoh's claims were not to be struck out but denied TPS's application to stay the proceedings. The alternative tort claim was allowed to proceed, as it was not subject to the expert determination clause. This decision clarified the limitations of expert determination clauses and reinforced the distinction between expert determinations and binding legal resolutions.

Orders