Elcom Collieries Pty Ltd v Comserv Pty Ltd [2005] NSWSC 1083

New South Wales Supreme Court

CITATION : Elcom Collieries Pty Ltd v Comserv Pty Ltd [2005] NSWSC 1083

HEARING DATE(S) : 17/10/05

JUDGMENT DATE : 26 October 2005

JUDGMENT OF : Gzell J

DECISION : Declarations that deed not terminated and it and the determination are binding on the parties.

CATCHWORDS : CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether Deed for Expert Determination by Neutral Expert, binding on the parties was terminated before the neutral expert's determination issued - No matters of principle

Elcom Collieries Pty Ltd - Plaintiff PARTIES : Comserv Pty Ltd - Defendant

FILE NUMBER(S) : SC 4045/05

Mr I V Gyles - For the Plaintiff COUNSEL : Mrs Axford - Defendant in Person

SOLICITORS : Clayton Utz Lawyers

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

WEDNESDAY 26 OCTOBER 2005

4045/05 ELCOM COLLIERIES PTY LTD v COMSERV (NO 1727) PTY LTD JUDGMENT

The issue 1 Comserve (No 1727) Pty Ltd is the owner of commercial premises containing three shops at Chain Valley Bay in New South Wales. Comserv brought proceedings in the District Court against Elcom Collieries Pty Ltd claiming damages for the effects of subsidence upon its building, allegedly caused by underground mining operations carried on by Elcom. 2 Consequent upon an order of the District Court that the parties participate in a process of alternative dispute resolution, a deed for expert determination by a neutral expert was executed by Comserve, Elcom and Geoffrey Andrew Markham, the neutral expert. 3 Mr Markham delivered his determination to the solicitors for Comserv on 15 March 2005. The issue is whether Comserv had, prior to that event, terminated the deed.