McGrath v McGrath

The case of McGrath v McGrath was heard in the Supreme Court of New South Wales. The dispute between the parties centred around the interpretation and application of an expert determination clause within a contract. The core issue was whether the process followed by the expert in valuing a property was compliant with the clause, and if not, whether the expert's determination could be set aside due to alleged bias.

The legal issues the court was required to decide included the extent of the expert's discretion under the determination clause, the burden of proof for establishing actual bias, and the principles governing apprehended bias. Specifically, the court had to determine if the appellant had met the heavy onus of proving actual bias, and whether the principle of apprehended bias applied to the expert. The court also considered whether the expert's preliminary communications with one of the parties constituted bias.

The court held that the expert had discretion in determining the process of valuation under the clause, and that the burden of proving actual bias was substantial. The court found no evidence of actual bias and concluded that the principle of apprehended bias rarely applied to experts, as it would undermine the policy and principle behind such clauses. The court also ruled that the expert's preliminary communications did not amount to bias. Given that the dispute had not yet crystallised, the court declined to provide an advisory opinion on a theoretical issue.

The court dismissed the appeal and ordered the respondent to pay the appellant's costs of the appeal.