Lipman Pty Ltd v Emergency Services Superannuation Board

Lipman Pty Ltd (Lipman) and the Emergency Services Superannuation Board (ESSB) were parties to a contract that contained a dispute resolution clause. This clause stipulated that an expert determination would be final and binding, unless a party gave notice of appeal within 21 days. Lipman issued a notice of appeal, and the dispute concerned whether this notice rendered the expert determination not final and binding. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the proper construction of the dispute resolution clause, specifically whether the issuance of a notice of appeal within the stipulated timeframe meant that the expert determination was never final and binding. The court was required to determine the effect of the "unless" provision in the context of the contractual agreement for dispute resolution.

The Court of Appeal reasoned that dispute resolution clauses should be construed broadly to give effect to their business purpose, and that parties are unlikely to intend for disputes to be resolved in multiple venues or on multiple occasions. The court held that the expert determination was final and binding from the moment it was made, and that the notice of appeal did not negate its finality but rather invoked a process for challenging it. Consequently, the court found that the appeal should be dismissed.

The Court of Appeal allowed the application for leave to appeal, ordered that the draft notice of appeal stand as a filed notice of appeal, and dismissed the appeal with costs.