Poonindie Pty Ltd trading as Ted Wilson and Sons (TWS) v Eurobodalla Shire Council [2019] NSWSC 1485

Supreme Court New South Wales

Medium Neutral Citation: Poonindie Pty Ltd trading as Ted Wilson and Sons (TWS) v Eurobodalla Shire Council [2019] NSWSC 1485 Hearing dates: 24 July 2019 Date of orders: 28 August 2019 Decision date: 28 August 2019 Jurisdiction: Equity - Technology and Construction List Before: Rein J Decision: 1. The three Separate Questions (set out at [7]) are answered: (1) no; (2) does not arise; and (3) prayer 1 of the Summons should be dismissed: see [37]-[38] below. 2. The Plaintiff to pay the Defendant's costs of the Separate Questions. Catchwords: BUILDING AND CONSTRUCTION – Expert determination ­­– Where, on the defendant's case, four issues were referred to the expert for determination, but on the plaintiff's case only one of those issues was validly referred, such that the expert's determination ought to be void for want of a mandate – Where the contractual provisions governing expert determination allowed the parties to raise before the expert "any" cross claim, set-off or defence once an initial issue had been referred.

CIVIL PROCEDURE – Separate determination of questions Legislation Cited: Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Brett v Barr Smith (1919) 26 CLR 87 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 Fletcher Construction Australia Ltd v MPN Group Pty Ltd (Unreported, NSWSC, Rolfe J, 14 July 1997) Gray v Webb (1882) 21 Ch D 802 Hardesty & Hanover International LLC v Abigroup Contractors Pty Ltd [2010] SASC 44; (2011) 27 BCL 122 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297; (2011) 15 BPR 29,545 Savcor Pty Ltd v State of New South Wales [2001] NSWSC 596; (2001) 52 NSWLR 587 Smith v Cooke [1891] AC 297 The Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646 Texts Cited: Nil Category: Procedural and other rulings Parties: Poonindie Pty Ltd trading as Ted Wilson and Sons (TWS) (Plaintiff) Eurobodalla Shire Council (First Defendant) Mr Neil Turner (Second Defendant) Representation: Counsel: Mr D. Neggo (Plaintiff) Mr S. Robertson (First Defendant)