Legal Research
Cases
Lepcanfin Pty Ltd v Lepfin Pty Ltd

Lepcanfin Pty Ltd v Lepfin Pty Ltd

Link copied

Case Copied 23 July 2020 66 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Lepcanfin Pty Ltd v Lepfin Pty Ltd [2020] NSWCA 155
Hearing dates: 14 May 2020
Date of orders: 23 July 2020
Decision date: 23 July 2020
Before: Bell P at [1]; Payne JA at [116]; McCallum JA at [117]
Decision:
1. Grant leave to appeal but dismiss the appeal with costs on the Mandate Issue, as identified in the reasons for judgment.
2. Refuse leave to appeal with costs in respect of the Guarantee Issue, as identified in the reasons for judgment.

Catchwords:
CONTRACT – dispute resolution clauses – expert determination clause – separate Expert Determination Agreement entered into – whether expert exceeded her mandate in determining that clause in a Development Deed was a penalty – construction of ambit of separate Expert Determination Agreement – when one party to dispute initially accepted that penalty issue fell within scope of Expert Determination Agreement and then resiled from that fact – whether party estopped from resiling from initial position – whether other issues sought to be raised in Commercial List proceedings but which had not been the subject of expert determination could be litigated – whether primary judge erred in staying litigation of those issues.

Legislation Cited:
Supreme Court Act 1970 (NSW) s 101(2)(e)

Cases Cited:
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192
Dance With Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332
Electricity Generation Corporation v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corporation (2014) 251 CLR 640; [2014] HCA 7
FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association (1997) 41 NSWLR 117
Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; (1996) 131 FLR 422
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Global Partners Fund Limited v Babcock & Brown Limited (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196
Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170
Harrington v Browne (1917) 23 CLR 297; [1917] HCA 36
Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82
Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR 936
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Mastrobuono v Shearson Lehman Hutton Inc. 514 US 52 (1995)
Mitsubishi Motors Corp v Soler-Chrysler Plymouth Inc 473 US 614 (1985)
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Paper Products Pty Ltd v…

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.

Keep reading for free

Create a free CaseChat account to read Lepcanfin Pty Ltd v Lepfin Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCA 155
Decision Date: 23 July 2020

CaseChat Overview and Summary

Lepcanfin Pty Ltd (the appellant) and Lepfin Pty Ltd (the respondent) were parties to a dispute concerning a Development Deed. The core of the disagreement revolved around whether an expert determination, conducted pursuant to a separate Expert Determination Agreement, had exceeded the scope of that agreement. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were: (1) whether the expert had exceeded her mandate by determining that a clause within the Development Deed constituted a penalty; (2) the proper construction of the ambit of the separate Expert Determination Agreement; (3) whether the appellant was estopped from resiling from its initial acceptance that the penalty issue fell within the scope of the expert determination; and (4) whether issues not subjected to expert determination could be litigated in the Commercial List proceedings, and if the primary judge had erred in staying such litigation.

The Court of Appeal reasoned that the Mandate Issue, concerning whether the expert had exceeded her remit, was to be determined by construing the terms of the Expert Determination Agreement. The Court found that the appellant had initially accepted that the penalty issue was within the scope of the expert determination, and subsequently sought to resile from this position. The Court held that the appellant was estopped from resiling from its initial acceptance. Regarding the other issues sought to be litigated, the Court considered the interplay between the expert determination process and the ability to litigate matters not covered by that process.

The Court of Appeal granted leave to appeal but dismissed the appeal with costs on the Mandate Issue. Leave to appeal was refused with costs in respect of the Guarantee Issue.

Orders

Orders of the court

1. Grant leave to appeal but dismiss the appeal with costs on the Mandate Issue, as identified in the reasons for judgment.

2. Refuse leave to appeal with costs in respect of the Guarantee Issue, as identified in the reasons for judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lepcanfin Pty Ltd v Lepfin Pty Ltd [2020] NSWCA 155
Hearing dates:	14 May 2020
Date of orders:	23 July 2020
Decision date:	23 July 2020
Before:	Bell P at [1]; Payne JA at [116]; McCallum JA at [117]
Decision:	1. Grant leave to appeal but dismiss the appeal with costs on the Mandate Issue, as identified in the reasons for judgment. 2. Refuse leave to appeal with costs in respect of the Guarantee Issue, as identified in the reasons for judgment.
Catchwords:	CONTRACT – dispute resolution clauses – expert determination clause – separate Expert Determination Agreement entered into – whether expert exceeded her mandate in determining that clause in a Development Deed was a penalty – construction of ambit of separate Expert Determination Agreement – when one party to dispute initially accepted that penalty issue fell within scope of Expert Determination Agreement and then resiled from that fact – whether party estopped from resiling from initial position – whether other issues sought to be raised in Commercial List proceedings but which had not been the subject of expert determination could be litigated – whether primary judge erred in staying litigation of those issues.
Legislation Cited:	Supreme Court Act 1970 (NSW) s 101(2)(e)
Cases Cited:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45; [2006] FCAFC 192 Dance With Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332 Electricity Generation Corporation v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corporation (2014) 251 CLR 640; [2014] HCA 7 FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association (1997) 41 NSWLR 117 Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2007] 4 All ER 951 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160; (1996) 131 FLR 422 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Global Partners Fund Limited v Babcock & Brown Limited (in liq) (2010) 79 ACSR 383; [2010] NSWCA 196 Hancock Prospecting Pty Ltd v Rinehart (2017) 257 FCR 442; [2017] FCAFC 170 Harrington v Browne (1917) 23 CLR 297; [1917] HCA 36 Inghams Enterprises Pty Limited v Hannigan [2020] NSWCA 82 Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR 936 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Mastrobuono v Shearson Lehman Hutton Inc. 514 US 52 (1995) Mitsubishi Motors Corp v Soler-Chrysler Plymouth Inc 473 US 614 (1985) Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Paper Products Pty Ltd v…