Lepcanfin Pty Ltd v Lepfin Pty Ltd

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.