Australian Vintage Limited v Belvino Investments No 2 Pty Ltd [2015] NSWCA 275

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Vintage Limited v Belvino Investments No 2 Pty Ltd [2015] NSWCA 275 Hearing dates: 24 June 2015 Date of orders: 11 September 2015 Decision date: 11 September 2015 Before: Bathurst CJ at [1]; Beazley P at [92]; McColl JA at [93] Decision: Appeal allowed. Orders 1-3 made by the primary judge on 11 March 2015 be set aside. Order that the matter be remitted to the second respondent for determination in accordance with these reasons. Order the first respondent to pay the appellant's costs of the appeal and, subject to Order 4 made by the primary judge, the costs of the proceedings below. The first respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if eligible. Catchwords: CONTRACT – construction – construction of clause stating formula to be applied by expert in dispute resolution under commercial lease of vineyard

APPEAL – civil – expert determination under dispute resolution clause – whether expert's determination open to review by Court on the basis that the expert misconstrued the formula to be applied by him in making the determination Legislation Cited: Suitors' Fund Act 1951 (NSW) Cases Cited: AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 Belvino Investments (No 2) Pty Ltd v Australian Vintage Ltd [2014] NSWSC 978 Downer Engineering Power Pty Ltd v P & H Minepro Australasia Pty Ltd [2007] NSWCA 318 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 Holt v Cox (1997) 23 ACSR 590 Jones v Sherwood Computer Services plc (1992) 1 WLR 277 Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125 Mercury Communications Ltd v Director-General of Telecommunications (1996) 1 WLR 48 Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; 85 NSWLR 1 Shoalhaven City Council v Firedam Civil Engineering Pty Ltd [2011] HCA 38; 244 CLR 305 WMC Resources Ltd v Leighton Contractors Pty Ltd [1999] WASCA 10; 20 WAR 489 Category: Principal judgment Parties: Australian Vintage Limited (Appellant) Belvino Investments No. 2 Pty Limited (as trustee of the McGuigan Simeon Trust) (First Respondent) Peter Scholefield (Second Respondent) Scholefield Robinson Horticultural Services Pty Ltd (Third Respondent) Representation: Counsel: DF Jackson QC / SA Goodman (Appellant) RA Dick SC / DJ Barnett (First Respondent)