Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWCA 299

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWCA 299 Hearing dates: 31 August 2015 Decision date: 30 September 2015 Before: Bathurst CJ at [1]; Meagher JA at [11]; Ward JA at [45] Decision: 1. Appeal allowed. 2. Set aside the declarations and orders made by Sackar J on 6 March 2015. 3. Declare that the respondent has no entitlement to refer for determination by an expert (purportedly pursuant to cl 24.2(2) of the Contract) a dispute as to whether or how it should be compensated for additional costs, in accordance with the provisions in cl 25 of the Processing Contract dated 14 August 2006 in circumstances where: (a) the respondent has asserted the existence of facts or matters referred to in cl 24 of the Processing Contract; (b) the respondent has eschewed reliance upon the circumstances referred to in cl 24.3 of the Processing Contract; (c) following the respondent's assertion of the existence of facts or matters referred to in cl 24.4 of the Processing Contract, the parties have negotiated, but been unable to agree, on the question whether a variation circumstance, based upon the existence of those facts or matters, should apply. 4. Order the respondent's cross claim filed on 20 January 2015 be dismissed. 5. Order the respondent pay the appellants' costs of the summons and cross claim. 6. Order the respondent pay the appellants' costs of the appeal. Catchwords: CONTRACT – construction – operation of dispute resolution clauses – provisions of long term contract as to when service provider entitled to variation of fee – where dispute as to whether variation provision applies and, if applies, as to whether and how service provider to be compensated – whether dispute to be referred to expert or subject to general dispute resolution provision – no question of principle Cases Cited: Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 York Air Conditioning & Refrigeration (Australasia) Pty Ltd v Commonwealth [1949] HCA 23; 80 CLR 11 Category: Principal judgment Parties: Campbelltown City Council (First Appellant) Camden Council (Second Appellant) Wingecarribee Shire Council (Third Appellant) Wollondilly Shire Council (Fourth Appellant) WSN Environmental Solutions Pty Ltd trading as SITA Australia (Respondent) Representation: Counsel: A J L Bannon SC with A J Abadee (Appellants) N C Hutley SC with C O Gleeson (Respondent)