Redpath Contract Services Pty Ltd v Anglo Coal (Grosvenor Management) Pty Ltd

Redpath Contract Services Pty Ltd sought a declaration in the Supreme Court of New South Wales that Anglo Coal (Grosvenor Management) Pty Ltd had agreed to appoint a particular expert to determine a dispute between the parties. The contract between the parties included a clause which required that any disputes be referred to an expert for determination. The parties had agreed to refer a dispute to an expert, but had not been able to agree on which expert to appoint. Redpath proposed an expert and the parties settled a letter that Redpath would send to the expert to enquire about his availability over the next four to six months. The letter was delayed and when it was sent, the expert said that he was not available for nine months. Redpath rejected the expert and appointed a different one. Anglo argued that the parties had agreed to appoint the expert proposed by Redpath, subject to his availability, and that Redpath had acted unreasonably in rejecting the expert when he was not available for only a slightly longer period than agreed.

The court was required to decide whether there was a concluded agreement to appoint the expert and whether Redpath acted reasonably in rejecting the expert. The court also had to decide whether there was an implied obligation to act reasonably in the agreement to appoint an expert. The court found that there was no concluded agreement to appoint the expert because the parties had not agreed to a condition that the expert be reasonably available. The court also found that there was no implied obligation to act reasonably in the agreement to appoint an expert. The court found that Redpath did not act unreasonably in rejecting the expert because the expert was not available for a significantly longer period than the parties had agreed.

The orders of the court were that the originating application in proceeding number 11418/16 was dismissed, that there was no agreement between Redpath and Anglo to appoint the expert proposed by Redpath, and that the originating application in proceeding number 11338/16 was adjourned to a later date.