Lahey Constructions Pty Ltd v The State of New South Wales [2021] NSWCA 69

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lahey Constructions Pty Ltd v The State of New South Wales [2021] NSWCA 69 Hearing dates: 23 March 2021 Date of orders: 26 April 2021 Decision date: 26 April 2021 Before: Bathurst CJ at [1] Bell P at [2] Gleeson JA at [10] Decision: (1) Grant leave to appeal. (2) Direct the applicant to file a notice of appeal in the form of the draft contained in Tab 2 of the White Folder within 7 days. (3) Appeal allowed. (4) Set aside the orders made by Henry J on 28 August 2020 and in lieu, order: (a) The defendant's notice of motion filed 9 June 2020 be dismissed. (b) The defendant to pay the plaintiff's costs of the motion. (5) Remit the matter to the Technology and Construction List of the Equity Division for directions for the further conduct and hearing of the proceedings. (6) Respondent to pay the appellant's costs of the appeal. Catchwords: CONTRACT – building and construction contracts – interpretation – expert determination clause – whether expert determination is final and binding – where parties' precluded from commencing litigation following expert determination unless value of the determination exceeded a threshold amount – where value of the determination to be calculated without having regard to amounts paid under the Building and Construction Industry Security of Payment Act 1999 (NSW) Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), s 32 Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856; (2004) 20 BCL 452 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2014] HCA 37 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Saville v Hallmarc Construction Pty Ltd [2015] VSCA 318; (2015) 47 VR 177 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Wickstead v Browne (1992) 30 NSWLR 1 Category: Principal judgment Parties: Lahey Constructions Pty Ltd (Appellant) The State of New South Wales (Respondent) Representation: Counsel: B Walker AO SC / A Vincent (Appellant) K Richardson SC / J Wright (Respondent)