The Illawarra Community Housing Trust Limited v MP Park Lane Pty Ltd [2020] NSWSC 751

Supreme Court New South Wales

Medium Neutral Citation: The Illawarra Community Housing Trust Limited v MP Park Lane Pty Ltd [2020] NSWSC 751 Hearing dates: 1 June 2020 Decision date: 17 June 2020 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: (1) Summons dismissed. (2) Declaration that the Dispute Notice given by the defendant/cross claimant to the plaintiff/cross defendant on 25 October 2019 is a valid Dispute Notice within the meaning of Clause 21.2 of the Project Delivery Agreement entered into on 26 November 2015 as amended. (3) Declaration that the letter dated 21 April 2020 from the defendant/cross claimant to the President of the NSW Bar Association was and is a valid referral under Clause 21.5(2) of the said Agreement. Catchwords: CONTRACT – Construction – Expert determination clause in a Project Delivery Agreement (agreement) which provides that any dispute in connection with the agreement must be dealt with by expert determination – Ambit of operation of the clause – Whether it should be narrowly construed to exclude certain disputes – Whether it operates after termination of the agreement – Whether it is void for uncertainty – Dispute concerns whether the defendant breached the agreement by failing to meet critical dates and whether a purported termination by the plaintiff of the agreement was valid or was a repudiation which permitted the defendant to terminate – DAMAGES – Defendant makes a claim for damages – HELD – Clause not to be construed narrowly – On its proper construction the dispute must be referred for expert determination – Clause operates even though agreement has been terminated – Clause not void for uncertainty Cases Cited: Barclays Bank PLC v Nylon Capital LLP [2012] 1 All ER (Comm) 912 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45 Dance With Mr D Limited v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332 Downer Engineering Power Pty Ltd v P & H Minepro Australasia Pty Ltd [2007] NSWCA 318 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Ferris v Plaister (1994) 34 NSWLR 474 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways (1996) 39 NSWLR 160 Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 576 Lighter Quay Residents' Society Inc v Waterfront Properties [2013] NZHC 2678 Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 MP Park Lane Pty Ltd v Wollongong City Council [2019] NSWLEC 1197 Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2008] QCA 160 Raskin v Mediterranean Olives Estate [2017] VSC 94 Rinehart v Welker (2012) 95 NSWLR 221 Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003] NSWSC 1134 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Zeke Services v Traffic Technologies [2005] QSC 135 Category: Principal judgment Parties: The Illawarra Community Housing Trust Limited – Plaintiff/Cross Defendant MP Park Lane Pty Ltd (formerly known as EBD Park Lane Pty Ltd) Atf the MP Park Lane Trust (formerly known as EBD Park Lane Trust) – Defendant/Cross Claimant Representation: Counsel: IM Jackman SC with L Gor - Plaintiff/Cross Defendant M Dempsey SC with D Hughes - Defendant/Cross Claimant