Lipman Pty Ltd v Emergency Services Superannuation Board

Court of Appeal

New South Wales

Case Title:

Lipman Pty Ltd v Emergency Services Superannuation Board

Medium Neutral Citation:

[2011] NSWCA 163

Hearing Date(s):

27 May 2011

Decision Date:

27 May 2011

Jurisdiction:

Before:

Allsop P at 1, Young JA at 17, Tobias AJA at 18

Decision:

1. Application for leave to appeal allowed.
2. The draft notice of appeal contained within volume 1 of the application books stand as a filed notice of appeal.
3. Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - construction - dispute resolution clause - requirement under contract that expert determination be final and binding "unless a party gives notice of appeal" within 21 days - whether determination never final and binding where notice issued.

ADR - dispute resolution clauses to be construed broadly to give effect to business purpose - parties unlikely to have intended multiple venues or occasions for resolution of disputes.

CASE MANAGEMENT - conduct of appeal - filing of unnecessary material - need for practitioners to play their part in providing efficiency of service through the courts.

Legislation Cited:

Cases Cited:

Comandate Marine Corporation v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; 157 FCR 45
Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40; [2008] 1 Lloyd's Rep 254
Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160
United Group Rail Services Ltd v Rail Corporation of New South Wales [2009] NSWCA 177; 74 NSWLR 618

Texts Cited:

Category:

Principal judgment

Parties:

Lipman Pty Ltd (Applicant)
Emergency Services Superannuation Board (Respondent)

Representation

- Counsel:

Counsel:
Mr M G Rudge SC, Mr H Bevan (Applicant)
Mr M Dempsey SC, Mr N Kidd (Respondent)

- Solicitors:

Solicitors:
Kreisson Legal (Applicant)
Holding Redlich (Respondent)

File number(s):

2009/298863

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Hammerschlag J

- Date of Decision:

29 June 2010

- Citation:

Lipman Pty Limited v Emergency Services Superannuation Board [2010] NSWSC 710

- Court File Number(s)

2009/298863

Publication Restriction:

Judgment

1. ALLSOP P: This is an application for leave to appeal and an appeal should leave be granted from an order in the nature of a declaration made by the Construction List judge, Hammerschlag J, as to the final and binding character of a determination by an expert appointed under a dispute resolution clause of a building contract.

1. The relevant parts of the clause provide as follows:

" 42.10 Determination by Expert

The determination of the expert:

(a) must be in writing;

(b) will be:

(i) substituted for the relevant direction for the Superintendent; and

(ii) is final and binding