Poonindie Pty Ltd trading as Ted Wilson and Sons (TWS) v Eurobodalla Shire Council

The parties to the case were Poonindie Pty Ltd trading as Ted Wilson and Sons (TWS) and the Eurobodalla Shire Council. The dispute was centred around an expert determination process in a construction context. The matter was heard in the Supreme Court of New South Wales. TWS brought an action against the council to recover costs associated with works carried out under a contract. The council defended the action by raising various counterclaims and seeking to offset the amounts claimed by TWS.

The primary legal issues before the court were whether the expert determination process was valid and whether the expert's determination was binding on the parties. TWS argued that only one of the four issues referred to the expert was validly referred, which meant that the expert's determination was void for want of a mandate. The council, on the other hand, contended that the contractual provisions governing the expert determination allowed the parties to raise "any" cross claim, set-off, or defence once an initial issue had been referred, thereby rendering the expert's determination valid.

The court found that the contractual provisions did not support the council's argument. The court held that the expert's determination was void because it was based on a mandate that was not validly issued. The court also noted that the separate determination of questions of law and fact was a fundamental aspect of the expert determination process and that the council's attempt to expand the scope of the expert's mandate post-referral was not permissible. The court concluded that the expert's determination was not binding on the parties and that the matter should be resolved by the court.

The final orders of the court were that the expert's determination was void, and the matter was to proceed to trial to determine the respective rights and liabilities of the parties. The court also ordered that TWS was entitled to costs associated with the expert determination process, which the council was required to pay.