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appeal_of_an_expert_determination

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appeal_of_an_expert_determination [2013/10/21 17:45]
steve [2013]
appeal_of_an_expert_determination [2017/07/30 18:00]
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-====== Can I appeal an expert determination?​ ====== 
-  * Yes, however, the basis of appeal is limited. 
-  * Such an appeal is not one for judicial review of a decision in the administrative law sense(([[TX Australia v Broadcast Australia|TX Australia Pty Limited v Broadcast Australia Pty Limited]])). ​ 
-  * McHugh JA(([[Legal & General Life of Aust v A Hudson|Legal & General Life of Aust Ltd v A Hudson Pty Ltd]] (1985) 1 NSWLR 314)) recognised, and it has repeatedly been accepted, that the fundamental question is whether the exercise performed in fact satisfies the terms of the contract so as to make the determination binding. ​ 
-  * Absent fraud or collusion, a valuation is binding if it was made in accordance with the contract, and if so it is beside the point that it proceeded on the basis of error, or was a gross over or under value, or took into account irrelevant considerations(([[Legal & General Life of Aust v A Hudson|Legal & General Life of Aust Ltd v A Hudson Pty Ltd]] , 335-336 (McHugh JA); [[Geoffrey Alan Holt and Anor v Robert Hedley Cox|Holt v Cox]] [1997] NSWSC 144; (1997) 23 ACSR 590, 596 (Mason P)] )). 
-  * This does not mean that a valuation will stand regardless of error; it depends on the terms of the contract(([ [[Geoffrey Alan Holt and Anor v Robert Hedley Cox|Holt v Cox]] , 597 (Mason P)])). ​ 
-  * Accordingly,​ the question is whether the Expert'​s determination binds the parties in accordance with their contract, and that depends on whether the Expert has performed the task allocated him by the contract, in a way that the contract makes binding on the parties. 
-====== Cases ====== 
-==== 2013 ==== 
-  * [[Mackay Sugar v Sugar Australia|Mackay Sugar Ltd v Sugar Australia Pty Ltd]] (([2013] QSC 233)) 
-  * [[Murray & Roberts Australia v G B Lifestyles|Murray & Roberts Australia Pty Ltd -v- G B Lifestyles Pty Ltd]] (([2013] WASC 345)) 
-==== 2012 ==== 
-  * [[TX Australia v Broadcast Australia|TX Australia Pty Limited v Broadcast Australia Pty Limited]](([2012] NSWSC 4)) 
-    * Broadcasting and related industry contracts - plaintiff owner and operator of broadcast infrastructure - defendant has access to and use of plaintiff'​s infrastructure pursuant to contract - defendant exercises option to renew contract - contract provides for expert determination of licence fee if parties fail to reach agreement - expert charged with determining a reasonable fee having regard to rates charged to third parties at facility in question - term sheet determines that expert determination final and binding except if attended by manifest error or error of law - terms of contract direct task to be performed by expert and whether determination binding. 
-     * Plaintiff alleges error of law on basis expert misconceived function by adopting objective "​market value" assessment to ascertain fee as opposed to a subjective "fair value" approach - function of expert determined by contractual provisions - contract provides for hybrid process requiring consideration of subjective and objective factors, with rates charged to third parties a mandatory consideration - contract requires appraisal akin to 'fair market value' - expert does not have regard to exclusively objective considerations and considers position of particular parties - expert did not misconceive function. ​ 
-     * Plaintiff alleges error of law on basis expert failed to consider relevant factor - relevant consideration said to be '​special value' of contract to defendant - requirement for ascertainment of '​reasonable fee' refers to defendant as a willing but not anxious and involuntary purchaser - requirement for '​reasonable fee' antithetical to valuation proceeding on basis plaintiff a monopolist - expert did consider special value of contract to defendant. 
-     * Plaintiff alleges error of law on basis expert failed to give weight to current fees under original contract - expert had regard to such fees but concluded of limited relevance - not an error of law to weigh relevant factors in a particular way as opposed to not consider them - circumstances prevailing ten years previously when agreement first made materially different to present - fees agreed ten years previously not useful guide to what constitutes a '​reasonable fee'. 
-     * Plaintiff alleges error of law and manifest error on basis expert used incorrect comparator in assessing '​reasonable fee' - expert said to have incorrectly compared digital audio broadcasting with digital television broadcasting - audio broadcasting said to be inapposite comparator due to fact radio different medium to television with different cost factors - digital audio broadcasting fees considered by expert pertain to agreement between same parties and are relatively recent - errors in methodology employed by expert valuer not errors of law - matter of professional judgment as to weight to accord cost recovery and profit margin - expert evidence adduced in attempt to illustrate manifest error - fact such evidence needs to be adduced conveys error not manifest - expert did not make error of law or manifest error. 
-     * Plaintiff alleges expert failed to give detailed reasons - question whether reasons are '​reasons'​ within the meaning of the contract - failure to provide '​detailed reasons'​ entails there will not be a binding determination - due to requirement of '​detailed statement of reasons',​ provision of wider than usual scope to challenge binding nature of determination and fact issues are complex standard of reasons required by contract akin to that expected of judges and commercial arbitrators - expert sufficiently identifies methodology and provides sufficiently detailed and comprehensive reasons - reasons are '​detailed reasons'​ within meaning of contract. ​ 
-     * Plaintiff alleges error of law on basis determination manifestly unreasonable - determination said to be unreasonable in Wednesbury sense because of relative magnitude of reduction in licence fee - contract requires new fee to be determined with predominate regard to market based considerations and cost considerations not prevailing when original fee determined - determination not so unreasonably low - determination rewards plaintiff above avoidable cost - arguable that perpetuating current fee would be unreasonable - determination not manifestly unreasonable 
-==== 2011  ==== 
-  * [[Shoalhaven City Council v Firedam Civil Engineering|Shoalhaven City Council v Firedam Civil Engineering Pty Limited]] (([2011] HCA 38)) French CJ, Crennan and Kiefel JJ 
-    * The General Conditions provided ​ 
-      * The Principal may in its absolute discretion for the benefit of the Principal extend the time for Completion at any time and for any reason, whether or not the Contractor has Claimed an extension of time. 
-      * The Contractor is not entitled to an extension of time for Completion under this clause 54.6 unless the Principal exercises its discretion to extend the time for Completion. 
-      * A party to the Contract could give notice to the other party of an issue about any matter arising under the Contract((A dispute resolution procedure was set out in cll 73-76 of the General Conditions.)) 
-      * Senior executives were required to attempt to resolve issues so notified. 
-      * An issue not able to be resolved by senior executives of the parties could be referred to an Expert for "​Expert Determination"​. 
-      * The Contract also provided that, in answer to any issue referred to the Expert by a party, the other party could raise any defence, set-off or cross-claim 
-    * The Contract further provided: 
-      * the parties to treat the Expert Determination as final and binding if the aggregate liability of one party to the other did not exceed $500,​000.  ​ 
-      * If the aggregate amount determined exceeded $500,000, then either party was free to commence proceedings in respect of the determined amount within 56 days after receiving the Determination 
-    * The Expert'​s use of the principal'​s discretion to extend time as a device for allocating responsibility for delay caused by the principal was adequately explained and was not inconsistent with his refusal to allow the contractor'​s claimed extensions of time. 
-==== 2006 ==== 
-  * [[AGL Victoria v SPI Networks (Gas)|AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd & Anor]] (([2006] VSCA 173)) 
-  * [[Colin Marg v Mackay Medical Investment|Colin Marg Pty Ltd v. Mackay Medical Investment Ltd]] (([2006] QSC 181)) 
-    * Wilson J, ...Thus I consider that the valuer’s task under clause 15.4.4 is to undertake the valuation on a subjective basis. Mr Thorne’s valuation, performed on an objective basis, does not conform to the terms of the lease, and so is not final and binding on the parties. 
-==== 2004 ==== 
-  * [[MMAL Rentals v Bernard John BRUNING|MMAL Rentals Pty Limited (ACN 008 293 490) v Bernard John BRUNING]](([2004] NSWCA 451)) 
-    * Meaning of "fair market value" 
-    * Share valuation 
-    * Use that may be made of evidence of an offer in a valuation exercise 
-    * Whether special potentiality or special value to one purchaser may be taken into account 
-    * Whether minority discount should apply 
-    * Whether minority shares have a '​greenmail'​ value 
-  * [[Time Developments v Village Roadshow Jam Factory|Time Developments Pty Ltd v Village Roadshow Jam Factory Pty Ltd]] (([2004] VSC 19)) 
- 
-==== 1980 ==== 
-  * [[Thomas Bates & Son v Wyndham'​s (Lingerie)|Thomas Bates & Son Ltd v Wyndham'​s (Lingerie) Ltd]](([1980] EWCA Civ 3)) 
-    * in default of agreement between the parties, the ... would have to assess what rent it would have been reasonable for these landlords and these tenants to have agreed under this lease having regard to all the circumstances relevant to any negotiations between them of a new rent from the review date. 
-==== 1977 ==== 
-  * [[Geoffrey Alan Holt and Anor v Robert Hedley Cox|Geoffrey Alan Holt and Anor v Robert Hedley Cox]](([1997] NSWSC 144)) 
-    * Companies 
-    * Shares 
-    * valuation by auditor 
-    * appropriate method 
-    * whether in accordance with contract embodied in Articles 
-    * whether "a fair price" 
-    * valuation not in accordance with contract 
- 
  

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