Elcom Collieries Pty Ltd v Brown [2005] NSWSC 1084

New South Wales Supreme Court

Elcom Collieries Pty Ltd v Brown [2005] NSWSC 1084 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 17/10/05

JUDGMENT DATE : 26 October 2005

JUDGMENT OF : Gzell J

DECISION : Declarations that deed not terminated and it and termination of expert binding on parties.

CATCHWORDS : CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Whether Deed for Expert Determination by Neutral Expert was terminated - Deed required expert to visit subject property for a view - Gates to property padlocked limiting view to exterior - Whether entitled to terminate for failure of expert to carry out a viewing - Expert suggested parties consider settlement - Expert considered reports by experts for both parties as required under deed - Whether entitled to terminate for breach of term that expert act as an expert and not as an arbitrator - Whether entitled to terminate for breach of term that expert notify any circumstance adversely affecting his capacity to act independently or impartially - Unnecessary to decide whether estopped from asserting a failure to take a view or whether relief from termination should be granted for unconscionable conduct - No other matters of principle

Elcom Collieries Pty Ltd - Plaintiff PARTIES : Norman Keith Brown and Mavis Ethel Brown - Defendants

FILE NUMBER(S) : SC 4048/05

Mr I V Gyles - Plaintiff COUNSEL : Mrs Brown - Appearing in person on behalf of Mr Brown and Herself

SOLICITORS : Clayton Utz Lawyers

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J