Case Reports

Leases - dispute resolution - appointment of independent expert by independent third party

In 1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd [2009] VSCA 308 (18 December 2009),  the Victorian Court of Appeal considered the operation of a dispute resolution regime under an agreement whereby the Appellant would undertake building works on land then lease land to the Respondent.  Condition precedent that the Respondent could terminate if Appellant failed to obtain planning permit.  Termination effective if Appellant failed to obtain permit within 30 days of Respondent giving notice.  Appellant failed to obtain permit.  Respondent gave notice, but Appellant obtained permit within 30 days.  Permit did not fully endorse landscaping plan, thus work could not commence.  Respondent initiated dispute resolution procedure under agreement which required an expert to be appointed.  Appellant objected to terms of engagement of experts and rejected appointment of two experts. Supreme Court of Victoria issued an injunction compelling Appellant to accept appointment of third expert.  Held (dismissing appeal): Injunction appropriate exercise of Supreme Court's equitable jurisdiction in aid of legal rights.  Expert's terms of engagement reasonable.