Canaipa Developments Pty Ltd v TLC Jones Pty Ltd [2021] QSC 237

SUPREME COURT OF QUEENSLAND CITATION: Canaipa Developments Pty Ltd v TLC Jones Pty Ltd [2021] QSC 237 PARTIES: CANAIPA DEVELOPMENTS PTY LTD (ACN 118 404 461) (plaintiff) v TLC JONES PTY LTD (ACN 142 234 099) AS TRUSTEE FOR TLC SUPERMARKETS UNIT TRUST NO 2 ABN 46 746 097 161 (defendant) FILE NO/S: BS No 678 of 2021 DIVISION: Trial Division PROCEEDING: Civil ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 17 September 2021 DELIVERED AT: Brisbane HEARING DATE: 30 August 2021 JUDGE: Applegarth J ORDER: The matter be adjourned to a date to be fixed for the making of orders and any submissions as to costs. CATCHWORDS: LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSTRUCTION AND INTERPRETATION – OTHER MATTERS – where the plaintiff and defendant are parties to a commercial lease over retail premises – where a dispute arose about the outgoings payable – where a mediation agreement provided for a joint expert to be appointed to assess and determine the annual allowable expenditure incurred on outgoings under the lease – where the plaintiff seeks to set aside the expert determination – whether the expert was validly appointed – whether the expert determination is binding AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly TXU Networks (Gas) Pty Ltd) [2006] VSCA 173, cited Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367, cited Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039, cited -- 1 of 33 -- 2 Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385, cited Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314, cited Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125, cited Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575, cited Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1, cited Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305, cited Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89, cited TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4, cited COUNSEL: A J Schriiffer for the plaintiff M Black for the defendant SOLICITORS: McCarthy Durie Lawyers for the plaintiff PM Lee & Co Lawyers for the defendant [1] The plaintiff (as landlord) and the defendant (as tenant) are parties to a commercial lease over retail premises. A dispute arose over the outgoings that were payable by the defendant to the plaintiff under the lease. [2] The defendant commenced proceedings in the District Court of Queensland, claiming it had overpaid outgoings, and the plaintiff counterclaimed, alleging that the defendant had underpaid outgoings payable to it. [3] The parties to that proceeding agreed to mediate and an agreement was reached. The agreement provided for a joint expert to be appointed to assess and determine the annual allowable expenditure incurred on “Outgoings” under the lease for the 2012/2013 to 2019/2020 financial years, pursuant to clause 4.6 of the lease. [4] The parties agreed to appoint the firm of Cushman & Wakefield as a joint expert and to instruct it to allocate an appropriate expert with expertise in retail shopping centre management and/or valuation. [5] Clause 12 of the agreement provided that each of the parties would “accept as final and binding for all purposes the Joint Expert’s determination” of the plaintiff’s total outgoings for the relevant years. They also agreed that, on that basis, the total amount of outgoings payable by the defendant would be 75.79% of the plaintiff’s total outgoings as determined by the Joint Expert. -- 2 of 33 -- 3 The expert determination [6] Ms Vicki Rudken, a Director of Cushman & Wakefield, undertook work and produced what the plaintiff has described as “the First Draft Report”. It comprises a letter dated 28 August 2020 and a lengthy schedule. [7] Ms Rudken also produced what has been termed by the plaintiff “the Second Draft Report”, which comprises a letter dated 16 September 2020 and another schedule. [8] Ms Rudken left her employment with Cushman & Wakefield on or about 17 September 2020. Another Director of Cushman & Wakefield, Mr Simon Cox, then took over the task of completing the determination. He produced what the plaintiff describes as “the Purported Report”, which consists of a letter dated 21 October 2020 and a schedule. [9] In summary, the expert determination relied upon by the defendant was delivered in three parts, the first two being the draft reports provided by Ms Rudken. The third part consists of Mr Cox’s letter dated 21 October 2020 (which updated an earlier letter dated 19 October 2020) and a schedule. The plaintiff’s challenge to the expert determination [10] The plaintiff applies to set aside the expert determination. [11] Some of the grounds relied upon relate to the validity of the appointment of Mr Cox. Others relate to whether the expert determination is otherwise binding on the parties. [12] The plaintiff argues that: (a) Ms Rudken was appointed under the mechanism in clause 3 of the Mediation Agreement as the relevant expert to prepare the report, but resigned before she completed it; (b) Mr Cox was not validly appointed as an expert; (c) even if Mr Cox was validly appointed, he did not fulfill his function as an expert because he relied on the draft (and incomplete) reports prepared by Ms Rudken; (d) Mr Cox took into account submissions from the defendant outside the terms of the agreement; (e) the expert (whether that was Mr Cox or Ms Rudken) did not carry out the task the parties agreed the expert should carry out; (f) in essence, the expert worked out the amount overcharged by the plaintiff for certain (but not all) invoices. However, the expert’s task was to “assess and determine the annual allowable expenditure incurred on Outgoings under the Lease for the 2012/13 to 2019/20 financial years, pursuant to clause 4.6 of the Lease”; (g) the expert misconstrued the definition of outgoings and clause 4.6 of the lease; (h) the expert erroneously proceeded on the basis that the Retail Shop Leases Act 1994 (Qld) applied to the lease. -- 3 of 33 -- 4 The defendant’s response [13] The defendant submits that the expert determination is binding. In short summary, it submits that: (a) on a proper construction of the agreement, the expert appointed to make a determination was the firm Cushman & Wakefield; (b) the parties committed to that expert the entire assessment and determination of the annual allowable expenditure incurred on outgoings, including questions of law and fact; and (c) the expert’s tasks did not miscarry in any way that would render the determination something other than what was contractually contemplated by the parties. Issues [14] In advance of the hearing the parties prepared the following list of real and substantial issues in dispute between them: 1. What is the meaning of the term “Joint Expert” (upper case) in the parties’ contract dated 23 June 2020 (Mediation Agreement) and, in particular, does “Joint Expert” mean: a. Cushman & Wakefield (Qld) Pty Ltd (Cushman & Wakefield); or b. Vicki Rudken; or c. Simon Cox; or d. Some combination thereof. 2. Did Cushman & Wakefield validly allocate Mr Cox as “an appropriate expert” under clause 3 of the Mediation Agreement, including: a. did Cushman & Wakefield validly/formally allocate Mr Cox as an “appropriate expert” b. did Cushman & Wakefield have the power to allocate Mr Cox as an “appropriate expert”; c. did Mr Cox have the requisite expertise? 3. If Mr Cox was validly allocated as an “appropriate expert” was he required to start the expert determination process again or could he rely on the work completed by Ms Rudken. 4. Did the Tenant impermissibly make submissions to the Joint Expert in breach of clause 9 of the Mediation Agreement? 5. Did the “Joint Expert” produce a valid determination pursuant to the Mediation Agreement and, in particular, did the “Joint Expert”: -- 4 of 33 -- 5 a. Misconstrue the relevant lease (including clause 4.6 and the definition of Outgoings) in a way that invalidates the determination? b. Impermissibly take into account submissions or material in a way that invalidates the determination? c. Impermissibly proceed on the basis that the Retail Shop Leases Act 1994 (Qld) applied to the lease? d. Fail to complete the task in accordance with clause 5 of the Mediation Agreement? 6. Are the reports dated 28 August 2020, 16 September 2020, 19 October 2020 or 21 October 2020 or a combination of the reports (Reports) binding on the parties? 7. Should the Reports be set aside? Conduct of the hearing [15] The parties are to be complimented on their approach to the proceeding, their preparation for it and their efficient conduct of the hearing which occupied less time than anticipated. The parties consented to the tender of relevant documents which became exhibit 1. Witnesses were not required since there were no real disputes of fact. [16] The general principles of interpretation that apply to the lease and to the agreement reached at the mediation are not in contest. I was assisted by helpful written and oral submissions which addressed a number of authorities governing the principles under which an expert determination may be set aside and the circumstances in which an agreement allows for the chosen expert to determine questions of law and fact, including the proper construction of a document such as a lease. The Lease [17] Clause 4.6 of the lease requires the defendant to pay the “Agreed Proportion” of estimated “Outgoings” for each financial year. The “Outgoings” are to be calculated on an “accrual and pre-payment basis”. They are deemed to have been paid at the time when the obligation to pay arose. [18] The plaintiff must provide the defendant with an estimate of “Outgoings” at least one month before the start of each financial year. Within three months after the expiry of each such year, the plaintiff must give the defendant an audited annual statement of expenditure incurred on “Outgoings”. Within 14 days of being provided with the statement, the plaintiff must refund any overpaid “Outgoings” and the defendant must pay any shortfall. [19] These matters appear in greater detail in the terms of clause 4.6: “Clause 4.6 Outgoings (a) The Lessee must pay the Agreed Proportion of (Estimated) Outgoings for each Financial Year in the manner notified in -- 5 of 33 -- 6 writing by the Lessor and in the absence of notification in the same manner as Base Rent (b) All Outgoings must be calculated on an accrual and prepayment basis and are deemed to have been paid at the time when the obligation to pay arose and those Outgoings assessed for periods other than a period of twelve (12) months or which may vary during a Financial Year must be apportioned so as to calculate the Outgoings for such period (c) The Lessor must provide the Lessee with an estimate of Outgoings at least one (1) month before the start of each Financial Year. Within three (3) months after the expiry of each Financial Year the Lessor must give to the Lessee an audited annual statement of expenditure incurred on Outgoings in the form approved by the Act. Within fourteen (14) days of being provided with a statement, the Lessor must refund any overpaid Outgoings and the Lessee must pay any shortfall.” [20] The term “Outgoings” is defined in the Dictionary Appendix to the lease as follows: ““Outgoings” means the Lessor's reasonable expenses directly attributable to the operation, maintenance or repair of the Building and charges, levies, premiums, rates or taxes payable by the Lessor because it is the owner or occupier of the Building or the Land and such expenses include, but will not be limited to, all costs associated with: a) rates, taxes and charges payable to any government or other authority b) cleaning costs and materials c) rubbish removal d) light and power charges e) airconditioning and ventilation f) lifts and escalators g) fire protection and prevention h) security i) insurance premiums j) repairs and maintenance k) costs for the control of pests, vermin or insects or other similar infestation l) costs of maintaining gardens, but does not include: -- 6 of 33 -- 7 a) management costs (including the costs of the Manager appointed under clause 8.l) b) land tax payable on the Land c) expenditure of a capital nature, including the amortisation of capital costs d) contributions to a depreciation or sinking fund e) insurance premiums for loss of profits f) payment of interest and charges on amounts borrowed by the Lessor g) any other amount prescribed by regulation in the Act”. [21] Other relevant definitions include “Building” which means “the structure erected upon the Land with all fixtures, equipment and chattels, the property of the Lessor contained within it from time to time”. The front page of the lease states what is common ground between the parties, namely that the premises being leased by the defendant consists of part of the ground floor of the “Building” erected on the land described in item 2. [22] The premises occupied by the defendant under the lease constitute part of the “Building”, hence the provision for the defendant to be liable to pay an agreed proportion of defined outgoings, rather than all of them. [23] The premises occupied by the defendant is in a large area that is used as an IGA store. Because of the store’s size the Retail Shop Leases Act 1994 (Qld) does not automatically apply to it. However, the final line in the definition of “Outgoings” states they do not include “any other item prescribed by a regulation” in that Act. The Mediation Agreement [24] The Agreement dated 23 June 2020 reached at the mediation stated in clause 2: “The parties agree to resolve District Court proceeding 2730/19 and all disputes between them regarding any outgoings payable by the Lessee to the Lessor for the financial years 2012/2013 to 2019/2020 (inclusive) on the terms set out herein.” [25] Clause 3, which is central to the first issues to be decided, provides: “The parties agree to appoint the firm of Cushman & Wakefield as a joint expert, and to instruct that firm to allocate an appropriate expert with expertise in retail shopping centre management and/or valuation (the Joint Expert).” [26] Clause 5 defined the task of the Joint Expert: “The Joint Expert is to be appointed to assess and determine the annual allowable expenditure incurred on Outgoings under the Lease for the 2012/2013 to 2019/2020 financial years, pursuant to clause 4.6 of the Lease, provided that expenditure for management costs (including the -- 7 of 33 -- 8 costs of the Manager appointed under clause 8.1 of the Lease) is to be excluded from the allowable Outgoings.” [27] Clause 6 provided for the parties to “ask the Joint Expert to prepare the determination within 8 weeks or as soon as reasonably practicable”. [28] Clause 8 regulated the making of submissions as follows: “The parties agree that, to assist the Joint Expert in preparing the determination: (a) Either party may, by no later than 24 July 2020, submit to the Joint Expert documents upon which they wish to rely along with supporting written submissions (and, at the same time, supply a copy to the other party). (b) Either party may, by no later than 31 July 2020, submit to the Joint Expert any documents or submissions upon which they wish to rely in response to the other party's material (and, at the same time, supply a copy to the other party). (c) The parties may submit other documents to the Joint Expert at other times only with the consent of both parties.” [29] Clause 9 went on to provide: “The parties agree to instruct the Joint Expert to disregard any documents or submissions that are submitted by or on behalf of the parties otherwise than in accordance with the preceding paragraph.” [30] Clause 10 set out how the parties were to answer the Joint Expert’s questions: “The parties agree that they will each use their best endeavours to fully respond to and answer any queries or requests posed by the Joint Expert, ensuring that all answers are also supplied to the other party at the same time.” [31] Clause 11 provided: “The parties agree that they will give the Joint Expert a copy of this Agreement.” [32] Clause 12 provided for the parties to accept the Joint Expert’s determination “as final and binding for all purposes”. It went on to provide that the total amount of “Outgoings” payable by the defendant will be 75.79% of the plaintiff’s total outgoings as determined by the Joint Expert for the relevant financial years. It then provided for adjustments in respect of amounts that had in fact been paid by the defendant to the plaintiff in respect of the relevant financial years. The terms of clause 12 are as follows: “The parties agree that, upon receipt by them of the Joint Expert's determination, they will each accept as final and binding for all purposes the Joint Expert's determination of the Lessor's total -- 8 of 33 -- 9 Outgoings for each of the financial years from 2012/2013 to 2019/2020 (inclusive), and on that basis: (a) The total amount of Outgoings payable by the Lessee will be 75.79% of the Lessor's total Outgoings as determined by the Joint Expert for the relevant financial years ("the Lessee's Share"). (b) If the total amount in fact paid by the Lessee to the Lessor in respect of all relevant financial years is less than the Lessee's Share, the difference will be a debt due and payable by the Lessee to the Lessor plus interest at the Default Rate specified in the Lease. (c) If the total amount in fact paid by the Lessee to the Lessor in respect of all relevant financial years is more than the Lessee's Share, the difference will be a debt due and payable by the Lessor to the Lessee plus interest at 6.5%. (d) Any amount payable pursuant to sub-clause (b) or (c) must be paid within 3 months after the Joint Expert delivers the Joint Expert's determination. (e) If the amount payable pursuant to sub-clause (b) or (c) above is greater than $50,000 (including GST) then the party liable to pay that amount will also pay the other party's costs on a standard basis (as agreed or as assessed).” [33] The parties agreed not to take further steps in the District Court proceeding until three months after the Joint Expert’s determination was received. Clause 14 provided for interim arrangements. Clause 17 provided: “If no determination has been made by 31 October 2020, either party may by written notice to the other party terminate this agreement (other than the agreement that the parties share the Joint Expert's costs equally) and the parties may thereafter take such steps in respect of the Proceeding as they see fit.” Who was the “Joint Expert” referred to in the Agreement? [34] This issue turns upon the proper construction of clause 3. [35] The plaintiff submits that the “Joint Expert” must be an individual, as opposed to a firm or other entity. Its submission makes a distinction between the words “joint expert” and “Joint Expert” in clause 3. It relies upon the fact that Cushman & Wakefield was required to allocate “an appropriate expert” with the stated expertise such that it could appoint only one expert. It was that person who was to assess and determine the annual allowable expenditure incurred on outgoings. According to the plaintiff, once Ms Rudken was allocated as the expert, Cushman & Wakefield could not allocate another person with the required expertise following her resignation without the parties’ further agreement. -- 9 of 33 -- 10 [36] The defendant’s position is that the Joint Expert clearly is “the firm of Cushman & Wakefield” and that the plain and natural meaning of clause 3 is that the term “Joint Expert” is adopted as a short-hand reference to “the firm of Cushman & Wakefield”. Principles of construction [37] The relevant principles governing the construction of such an agreement are authoritatively stated in authorities such as Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd.1 The terms of the agreement are to be determined objectively by reference to the agreement’s text, context and purpose.2 The terms are to be understood objectively, by what a reasonable business person would have understood those terms to mean.3 [38] Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of interpreting a commercial contract on the assumption that the parties intended to produce a commercial result.4 The contract should be construed so as to avoid “working commercial inconvenience”.5 Text and context [39] The text of the agreement, and the opening words of clause 3 in particular, suggest that the firm of Cushman & Wakefield is appointed as a “joint expert” and that the expression “the Joint Expert” is used in the following clauses of the Agreement as a convenient reference to that firm. [40] In my view, the plaintiff’s submissions place undue emphasis upon a distinction between the lowercase “joint expert” and the uppercase “Joint Expert”. [41] The view these are one and the same entity might be said to be weakened by the rest of clause 3 which anticipates that the “joint expert” will allocate an appropriate expert with the relevant expertise. However, I am not persuaded that the concluding words to clause 3 or other provisions of the agreement mean that the Joint Expert is an individual or entity other than the firm of Cushman & Wakefield. [42] Clause 3 clearly refers to the firm as the joint expert that the parties agree to appoint. The clause differs in form and substance from an agreement by which parties agree to an expert being appointed by a nominating body (which is not itself described as the expert). The authorities include cases in which parties agree that the president of a professional organisation, such as the President of a Law Society may appoint an expert. This is not such a case. [43] Notably, clause 3 does not state: “The parties agree to appoint the firm of Cushman & Wakefield to allocate an appropriate expert with expertise in retail shopping centre management and/or valuation to act as a joint expert”. 1 (2015) 256 CLR 104 at [46]-[51]. 2 Ibid at [46]. 3 Ibid at [47]. 4 Ibid at [51]. 5 Ibid. -- 10 of 33 -- 11 The terms of clause 3 specifically state that it is the firm of Cushman & Wakefield that is being appointed as the joint expert. [44] The proposition that the firm is the joint expert, that the words “the Joint Expert” are used as a convenient definition and that later references to the “Joint Expert” refer to the firm is supported by other clauses in the Agreement. For example, clause 7 requires the parties to share “the cost of the Joint Expert in equal shares”. In its commercial context, this is apt to refer to the cost of the firm, not the cost of an employee or independent contractor engaged by it who has the relevant expertise. The performance of the task committed to the Joint Expert would be likely to generate costs associated with administrative work undertaken by other staff of the firm, other costs and a profit margin which would be reflected in the cost of the services provided by the firm and for which each party was liable in equal shares. [45] The plaintiff argues that it is difficult to see how a corporation (in this case Cushman & Wakefield) can be an expert. They submit that it is the individual that has the “subject matter expertise” and not a corporation. Mr Schriiffer of counsel argued in oral submissions that the firm is a “corporate shell” and that it is the individual allocated by it, and only that individual, who is the Joint Expert. [46] I am not persuaded by this argument. A corporation, such as a large accounting firm, can be an expert in the field of accounting. The fact that it employs or otherwise engages individuals to give it that expertise does not alter the fact that the entity is an expert and may be engaged in a case like this as a joint expert. [47] In their context, the concluding words of clause 3 may be understood as a form of quality assurance for the work of the joint expert. Cushman & Wakefield as the appointed “joint expert” allocates an appropriate expert with the relevant expertise. This does not justify effectively striking through the words “as a joint expert” where they appear in clause 3. Meaning needs to be given to those words. They mean that a corporation can be a joint expert. They also mean that the corporation is the joint expert. [48] Another matter which favours the defendant’s preferred interpretation of “the Joint Expert” is the commercial inconvenience of adopting the interpretation urged by the plaintiff. The plaintiff’s interpretation, if accepted, would frustrate the performance of the agreement for the joint purpose of the parties if the person allocated by the agreed “Joint Expert” died, resigned or otherwise was unable to assist in undertaking the required determination. A partial answer to this proposition is that in such an event the parties might reach a further agreement to ask Cushman & Wakefield to allocate someone new. However, that would depend upon a further agreement. Absent such an agreement the process of obtaining a determination so as to resolve the parties’ dispute would come to an end. One should not construe clause 3 or the agreement as a whole so as to work such an uncommercial and inconvenient result. [49] In summary, the proper interpretation of clause 3 emerges from its text which appoints the firm of Cushman & Wakefield as the joint expert. The term “the Joint Expert” is a convenient short-hand reference to the firm for the purpose of the later clauses of the contract, including clauses which address the costs of the firm and the process by which it is to prepare the determination. The allocation of an individual is a means by which the quality of the joint expert’s work is assured. -- 11 of 33 -- 12 Was Mr Cox validly allocated as “an appropriate expert” under clause 3? [50] Clause 3 contemplates that the Joint Expert might from time to time allocate an appropriate expert with the relevant expertise. [51] With the relatively short time period stated in clause 6 for the Joint Expert to prepare the determination, the parties (and the Joint Expert) might have expected that only one person would be allocated by the Joint Expert. However, the purpose of the agreement would be frustrated by the unexpected death or departure of that individual. Therefore, clause 3 should be given a business-like interpretation so as to avoid working the commercial inconvenience that would arise if the allocated individual died, resigned or otherwise was unable or unwilling to continue in the allocated role. Clause 3 should be construed as allowing the Joint Expert to allocate an appropriate individual with the relevant expertise from time to time. [52] The plaintiff next submits that if the Joint Expert could allocate “an appropriate expert” from time to time, then there is insufficient evidence that Cushman & Wakefield did so in the case of Mr Cox. Although the plaintiff pleaded that Cushman & Wakefield “did not have the ability” to allocate another expert, it did not plead that the firm did not in fact allocate Mr Cox. The plaintiff pleaded that it did not consent to Mr Cox being appointed as an expert and this tends to suggest that he was. However, the agreement did not require the parties to consent to any allocation made by Cushman & Wakefield. [53] Leaving aside the defendant’s submission that the onus is on the plaintiff to prove that Mr Cox was not allocated in accordance with clause 3, the documentary evidence supports the inference that he was allocated. There is no evidence that he was not. [54] Ms Rudken was a Director of Cushman & Wakefield and Head of its Asset Services in Queensland. She advised the parties that she was leaving Cushman & Wakefield on Thursday 17 September 2020 and asked for certain comments in order to have an opportunity to review them prior to her departure. She advised that otherwise she would need to “hand the finalisation of this matter over to a colleague”. In the following week the parties, through their solicitors, engaged with Mr Cox. The plaintiff’s solicitors raised disagreements with calculations made in the first draft report of Ms Rudken and argued that it was not appropriate for Cushman & Wakefield to “finalise and issue the report prepared by Ms Rudken”. They did not question that Cushman & Wakefield had allocated the matter to Mr Cox. Mr Cox’s position was National Director – Head of Asset Services – Australia. This suggests a more senior position than that of Ms Rudken. In any event, the documents support the conclusion that Cushman & Wakefield decided to allocate Mr Cox as an appropriate expert with expertise in retail shopping centre management and/or valuation. [55] Next, the plaintiff submits that it is not clear whether Mr Cox had the relevant expertise, noting that Mr Cox did not provide a copy of his CV to the parties. However, no request for his CV seemingly was made. The fact that earlier the defendant had requested and was provided with Ms Rudken’s CV is not to the point. Mr Cox’s position suggests that he had expertise in the relevant field. -- 12 of 33 -- 13 Conclusion on appointment issues [56] The plaintiff has failed to establish its contention that Mr Cox was not validly appointed under the agreement. Principles governing challenges to expert determinations [57] The question of whether or not an expert determination is binding depends on the terms of the parties’ contract.6 [58] The matter or matters that the parties have entrusted to the expert determination ultimately turns on a proper construction of the contract.7 [59] The availability of review depends on whether the expert has carried out the task which he or she was contractually required to undertake.8 [60] If the expert in fact carried out the task in accordance with the contract, a mistake or error does not invalidate the determination.9 This conclusion is fortified when the parties have agreed that the determination is “final and binding”. [61] Therefore, the first inquiry is to identify from the parties’ agreement the matters entrusted to the expert for determination. This requires attention to the terms of the contract in the case at hand, rather than categoric statements or rules of thumb about whether experts have the task of deciding questions of law. The authorities do, however, disclose considerations which bear upon the issue of construction. For example, matters of an evaluative nature within the expertise of an expert, involving matters of judgment, opinion or discretion, are more likely to be committed to the final determination of the expert than a question of law, particularly when the expert has no legal qualifications or experience. [62] The authorities draw a distinction between errors in the exercise of a judgment, opinion or discretion and errors about “objective facts”. Nettle JA (as his Honour then was) addressed this kind of distinction as follows:10 “Therein lies the distinction drawn in some of the authorities, and observed by the judge in this case, between an error in the exercise of a judgment, opinion or discretion entrusted to an expert, and an error which involves objective facts or a mere mechanical or arithmetical exercise. Subject to the contract in question, it is easier to suppose that parties to a contract contemplate that an error of the former kind be beyond the realm of review than it is to think that they intend to be fixed with errors of objective fact or in processes of mechanical calculation. … The question in each case is what the parties should be presumed to have intended, and that is to be determined objectively from the 6 Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335. 7 Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89 at 333 [198]. 8 Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367 at 385 [74]. 9 Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335; Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367 at 385 [74]. 10 AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly TXU Networks (Gas) Pty Ltd) [2006] VSCA 173 at [53]-[54] (footnotes omitted). -- 13 of 33 -- 14 terms of the contract, bearing in mind the context in which it was created.” [63] Depending upon the terms of the contract in question, questions of mixed fact and law, or, for that matter, pure questions of law, may be left for the binding determination of an expert.11 [64] There will be cases where, in order to perform the agreed task, the expert will be required to consider the construction of a contract.12 This does not necessarily mean that the parties are bound by the expert’s interpretation. [65] These issues may arise where the issue of contractual construction which the expert is required to consider involves two possible interpretations, each of which is reasonable. The fact that the contract is open to more than one construction and that reasonable minds differ does not alter the fact there can be only one true meaning.13 Therefore, the fact that an exercise of judgment is involved in resolving a question of interpretation does not mean that “the ascertainment of that meaning was necessarily left to the expert, such that the expert’s determination was immune from review by the Court”.14 [66] This proposition was explained by Lord Hoffmann in a frequently-cited dissenting judgment in Mercury Communications Ltd v Director General of Telecommunications:15 “So in questions in which the parties have entrusted the power of decision to a valuer or other decision-maker, the courts will not interfere either before or after the decision. This is because the court’s views about the right answer to the question are irrelevant. On the other hand, the court will intervene if the decisionmaker has gone outside the limits of his decision-making authority. One must be careful about what is meant by ‘the decision-making authority’. By ‘decision-making authority’ I mean the power to make the wrong decision, in the sense of a decision different from that which the court would have made. Where the decision-maker is asked to decide in accordance with certain principles, he must obviously inform himself of those principles and this may mean having, in a trivial sense, to ‘decide’ what they mean. It does not follow that the question of what the principles mean is a matter within his decision-making authority in the sense that the parties have agreed to be bound by his views. Even if the language used by the parties is ambiguous, it must (unless void for uncertainty) have a meaning. The parties have agreed to a decision in accordance with this meaning and no other. Accordingly, if the decision-maker has acted upon what in the court’s view was the wrong meaning, he has gone outside his decision-making authority. Ambiguity in this sense is different from conceptual 11 Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367 at 385 [76]. 12 Ibid at [77] – [78]. 13 Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1 at [61]. 14 Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367 at 385-6 [78]. 15 [1994] CLC 1125 at 1140. -- 14 of 33 -- 15 imprecision which leaves to the judgment of the decision-maker the question of whether given facts fall within the specified criterion.” [67] The House of Lords allowed an appeal from the Court of Appeal in that case. Lord Slynn (with whom the other Law Lords agreed) adopted a similar approach to Lord Hoffmann’s judgment. The case involved the construction of certain phrases in an agreement under which one party was entitled to impose certain terms in telecommunication agreements. The matter required the interpretation of phrases such as “fully allocated costs” and “relevant overheads”. Lord Slynn observed that if the director misinterpreted those phrases and a determination was made on the basis of an incorrect interpretation, “he does not do what he was asked to do”.16 The parties to the contract were said to have intended for the director to deal with relevant matters and certain principles “as correctly interpreted”:17 “They did not intend him simply to apply such meaning as he himself thought they should bear. His interpretation could therefore be reviewed by the court. There is no provision expressly or impliedly that these matters were remitted exclusively to the Director, even though in order to carry out his task he must be obliged to interpret them in the first place for himself.” [68] If the determination of an ultimate question of fact necessarily involves an intermediate conclusion on a point which is properly regarded as a question of law, then in deciding whether the expert has contractual authority to determine both the intermediate point of law and the ultimate question of fact, the Court “may have regard to (1) whether the contract directs attention to expert determination of the ultimate question of fact (only), and (2) whether the intermediate point of law falls within the expertise of the expert”.18 [69] The question in such a case is whether the parties agreed to be bound by the expert’s determination on the question of construction (or some other question of law) as well as the application of the relevant provision to the facts. [70] Although mistake is not itself a ground for vitiation of a final and binding expert determination, a mistake may still be of such a nature that the resultant determination “is beyond the realm of contractual contemplation – beyond anything which the parties may be supposed to have intended to be final and binding – and therefore susceptible to review”.19 [71] Brereton J (as his Honour then was) referred to an expert who had effectively “misconceived his function, asked himself the wrong question or applied the wrong law or applied the wrong test” to the determination required under the contract.20 [72] Ultimately, the issue is whether the expert determination was made in accordance with the terms of the parties’ agreement. A mistake in applying a principle or a law is different to a mistake about the principles to be applied or an erroneous conclusion 16 Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575 at 582. 17 Ibid at 582-3. 18 Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89 at 133-134 [199]. 19 AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly TXU Networks (Gas) Pty Ltd) [2006] VSCA 173 at [51] citing Holt v Cox (1994) 15 ACSR 590 at 597 per Mason P. 20 TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4 at [23]. -- 15 of 33 -- 16 on the question of law. For example, a mistake or error on the part of a valuer is not by itself sufficient to invalidate the decision, but the mistake may be of a kind which shows that the valuation was not in accordance with the contract.21 A valuation which is the result of the mistaken application of the principles of valuation may still be made in accordance with the terms of the contract.22 [73] Sino Iron Pty Ltd v Mineralogy Pty Ltd 23 was a case in which the expert determination was to be of the amount to be paid to Mineralogy “under” clause 8. The Court of Appeal of Western Australia ruled that an expert determination “under” clause 8 must mean in accordance with clause 8 properly construed. The Court observed:24 “The parties could not, objectively, have intended that the royalty would be payable on a misconstruction of cl 8, even if the misconstruction came about through an honest but mistaken belief by the expert as to its true meaning.” [74] The issue in each case turns on the matter or matters the parties have entrusted to the expert determination. That involves the proper construction of the contract at hand, bearing in mind the context in which it was created. It does not involve finding points of similarity and difference between the case at hand and the facts of other cases. [75] For similar reasons, it is unhelpful to translate by analogy and without modification principles that apply in other contexts, such as the “decision-making authority” of a public authority. As Lord Hoffmann observed, one must be careful about what is meant by “decision-making authority” and whether it means the power to make a wrong decision in the sense of a decision different from that which the Court would have made. [76] In many public law contexts decision-makers have jurisdiction to make erroneous decisions. In some contexts, such as adjudication decisions, a decision-maker may have jurisdiction to interpret the provisions of a contract, such as a building contract, and to make an adjudication based upon an erroneous interpretation without invalidating the determination.25 Resort to analogies with the jurisdiction of adjudicators in a statutory context is unhelpful. This case is not concerned with an adjudication. This is an expert determination pursuant to the provisions of the parties’ private agreement. The expert determination process is neither arbitral nor judicial.26 [77] The expert determination is far removed from decision-making in a public law context. It is the product of the parties’ agreement. Generally speaking, a mistake or error by the expert in arriving at the matter to be determined will not invalidate the determination unless it is of a kind that shows that the determination has not been made in accordance with the contract. 21 Legal & General Life of Aust Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335. 22 Ibid at 335-336. 23 (2019) 55 WAR 89. 24 Ibid at 138 [210]. 25 Clyde Bergemann Senior Thermal Pty Ltd v Varley Power Services Pty Ltd [2011] NSWSC 1039 at [33] – [35]; Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385 at 399 [52]. 26 Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305 at [26]. -- 16 of 33 -- 17 Did the parties commit all relevant questions of law and fact to the Joint Expert for determination? [78] The defendant submits that a proper reading of clause 5 of the agreement shows that the parties referred to the Joint Expert all questions of fact or law as were necessary for the Joint Expert to “assess and determine” the relevant “allowable expenditure incurred on Outgoings”. It points to what is said to be the broad scope of what was referred under clause 5, namely to “assess and determine” the relevant outgoings “pursuant to clause 4.6 of the Lease” (subject to a specific exclusion about expenditure for management costs). The defendant submits that the parties, by expressly referring to clause 4.6 of the lease, directly committed the interpretation of the term “Outgoings” to the Joint Expert for determination. Clause 5 is submitted to naturally read as meaning that the Joint Expert was to assess and determine all questions necessary for the task, whether of fact or law. [79] I am not persuaded that the express terms of clause 5, either in isolation or when interpreted in their context, committed the question of law relating to the meaning of clause 4.6 of the lease to the final and binding determination of the Joint Expert. Instead, clause 5’s natural meaning is that the Joint Expert will be required to consider clause 4.6 of the lease in arriving at the determination. [80] Reasonable business people would not have understood clause 5 of the agreement to mean that the Joint Expert could simply apply whatever meaning the expert thought clause 4.6 should bear. The words used by the parties in clause 5, having regard to their context and commercial purpose, suggest that the parties agreed to a determination in accordance with the correct meaning of clause 4.6 of the lease and no other. [81] The possibility that the Joint Expert might adopt a reasonable but incorrect interpretation of clause 4.6 does not displace the view that when the parties used the words “pursuant to clause 4.6 of the Lease” they meant pursuant to clause 4.6 of the lease, properly construed. It seems improbable that they intended that the determination could be based upon a misconstruction of clause 4.6. [82] This conclusion is bolstered by the fact that the Joint Expert was not a lawyer or person with legal training or a law firm. The dispute being resolved was not essentially a question about the proper interpretation of clause 4.6 of the lease (in which event the parties might have resolved the dispute on the basis of referring that question for expert determination by a person or persons with legal qualifications). It related to the assessment and determination of annual allowable expenditure incurred on outgoings. The area of expertise of the Joint Expert makes it unlikely, objectively speaking, that the parties intended to be bound by whatever interpretation of clause 4.6 of the lease the Joint Expert chose to adopt. [83] I conclude that the parties were not bound by an erroneous interpretation by the Joint Expert of the meaning of clause 4.6 of the lease. Upon its proper interpretation, clause 5 of the agreement did not commit to the Joint Expert the task of determining questions of law in a way that was “final and binding”. Instead, the Joint Expert was required to consider questions of fact and law in arriving at an ultimate determination. It is possible for questions of mixed fact and law or questions of law to be referred to experts for a determination which is final and binding on that question. However, the language chosen by the parties, the subject matter of the determination and the area -- 17 of 33 -- 18 of the Joint Expert’s expertise do not suggest that the Joint Expert had contractual authority to finally determine intermediate points of law so as to bind the parties to that determination. The Joint Expert’s task [84] The matters entrusted to the Joint Expert are stated in clause 5 which is quoted at [26] above. The Joint Expert is “to assess and determine the annual allowable expenditure incurred on Outgoings” for the relevant years pursuant to clause 4.6 of the lease, subject to the exclusion about expenditure for management costs. [85] The definition of “Outgoings” quoted at [20] shows that the determination involves the exercise of judgment as to whether the plaintiff’s expenses were “reasonable expenses”. Questions of degree and judgment also arise in deciding whether reasonable expenses were “directly attributable” to the operation, maintenance or repair of the Building. [86] In defining the task that the Joint Expert was to undertake one must identify the matters that were entrusted to the expert determination, as well as things that the expert was not asked to do. [87] The expert was not being asked to determine the dispute between the parties in the District Court nor to determine overpayment or underpayments. The expert was not being asked to apportion between the defendant and other tenants the total amount of reasonable expenses directly attributable to the operation, maintenance or repair of the Building. Questions of apportionment, overpayment and underpayment were governed by clause 12 of the Mediation Agreement. They were not for the expert to determine. [88] In arriving at an ultimate determination about the annual allowable expenditure incurred on outgoings for the relevant year a practical approach may have been for the expert to: 1. start with the outgoings claimed by the plaintiff; 2. identify those outgoings not disputed by the defendant; 3. concentrate on claimed outgoings that were in dispute; 4. determine in the case of each disputed item whether it should be allowed in accordance with clause 5 of the agreement, having regard to clause 4.6 of the lease and the definition of “Outgoings”; and 5. finally, do one of two essentially mathematical exercises. One would be to aggregate the claimed outgoings that were not disputed and the disputed claims that were determined to be allowable expenditure incurred on outgoings. The second would be to deduct from those outgoings claimed by the plaintiff (item 1 above) the claims that were not allowed. [89] As will appear, the Joint Expert did not perform this final step. Despite this, the defendant submits that the Joint Expert nevertheless fulfilled the contractual task because there is no doubt about the total amount of outgoings claimed by the plaintiff -- 18 of 33 -- 19 for each relevant year and the Joint Expert found the amount by which the plaintiff’s claimed outgoings were overcharged for each relevant year. The determination is said to have provided both the amount claimed (by incorporating all previous correspondence) and the amount which was found to have been overcharged. The deduction of the latter from the former for each relevant year produces the annual allowable expenditure incurred on outgoings under the lease for that year. The defendant submits that this was no more than a mechanical step in calculation and that it was permissible for the Joint Expert to leave that mechanical step to the parties. Summation of challenges to the Joint Expert’s determination [90] Having outlined the relevant terms of the lease and the relevant principles governing challenges to expert determinations, it is convenient to summarise the plaintiff’s grounds of challenge before turning to the facts in greater detail. The plaintiff’s challenges relate to matters of process agreed to in the Mediation Agreement as well as issues of substance: 1. Was Mr Cox required to start the process again? 2. Were submissions impermissibly made and taken into account? 3. Alleged misconstruction of the lease, including issues in relation to the application of the Retail Shop Leases Act 1994, the disallowance of the plaintiff’s claims for insurance premiums and the partial allowance of claims for security. 4. Whether the expert undertook the wrong task, failed to perform or complete the required task or misunderstood the task. The expert determination process and its result Initial submissions [91] On 24 July 2020 the defendant provided its submissions to Ms Rudken. They attached a schedule which was used by Ms Rudken to prepare what has been described in this proceeding as the First Draft Report and the Second Draft Report. The plaintiff provided its submissions the same day and responded to the defendant’s schedule in respect of certain items. [92] On 31 July 2020 the defendant and the plaintiff each provided its submissions in reply. The First Draft Report [93] On 28 August 2020 Ms Rudken sent a four-page letter to the defendant’s solicitors, together with a schedule. These documents were provided to the plaintiff on 7 September 2020. Ms Rudken’s four-page letter referred to the definition of “Outgoings” in the lease and observed that: “The Tenant has disputed the outgoings claimed by the Landlord, both in terms of items excluded from the outgoings definition in the lease and the reasonableness of some of the items claimed.” -- 19 of 33 -- 20 [94] The report then advised that Cushman & Wakefield had reviewed the disputed charges in relation to the outgoings definition in the lease and the reasonableness of those charges. It provided a summary of the charges that should be excluded, and noted that further commentary on each expense was included in the spreadsheet. The report also noted where there was insufficient information about certain matters and these were highlighted in yellow in the schedule. Findings were made in the spreadsheet about many items. It is convenient to quote the summary in the covering letter: “(i) Advertising The cost of advertising is not permitted under the Retail Shop Leases Act 1994. (ii) Care Taking These costs relate to management costs which are excluded from the Outgoings Definition. (iii) Cleaning and Other Expenses directly related to a specific tenancy or tenancies. These expenses cannot be recovered under outgoings as per Retail Shop Leases Act 1994. Any expenses incurred that directly relates to a specific tenancy should be directly recharged. (iv) Office Expenses These costs relate to management costs which are excluded from the Outgoings Definition. (v) Repairs & Maintenance Any costs of a capital nature or directly relating to a specific tenancy or tenancies should be excluded from the outgoings. (vi) Insurance premiums for loss of profits. The cost of insurance for loss of profits is excluded from the outgoings. However, the premiums provided do not separate this item from the total policy amount.” [95] The report then turned to questions of reasonableness and made conclusions about expenses related to security and some maintenance issues. The monthly cost in respect of security was said to be unreasonable. There was discussion about the cost of septic maintenance and an issue about gardening. [96] Finally, the report commented about the basis of the audit preparation, namely as to whether the audits had been prepared on an accrual or cash basis. The report also stated the following under the heading GST: “Some of the invoice amounts stated in the spreadsheet provided, include GST and other amounts exclude GST. In order to calculate the total overcharge, the invoice amounts will have to be reviewed and confirmed. We recommend this final summary is prepared by a Chartered Accountant.” -- 20 of 33 -- 21 [97] The attached schedule did not include the 2012/2013 and 2019/2020 financial years, as required by clause 5 of the Mediation Agreement. The body of the report and its schedule did not state what the plaintiff could charge for outgoings in any of the financial years. Instead, the schedule was a spreadsheet about disputed items with comments that had been made by the parties and comments by Cushman & Wakefield (which included some comments about the need for further evidence or information). Where possible, there was an entry in a final column which was headed “CW Agreed Over Charge”. [98] Despite a covering email in which Ms Rudken indicated that Cushman & Wakefield had completed its review, the report was not finalised. The schedule contains a number of comments such as “We cannot comment on this item as we do not have operational knowledge of this site. The lessor should provide evidence that this service is undertaken” or “Auditor to confirm”. [99] Ms Rudken also suggested some matters be referred to another expert. In respect of septic maintenance, she stated “An annual maintenance estimate in the region of $4,000 per annum. However, we recommend that an expert is engaged to provide a more precise cost”. [100] As noted, Ms Rudken’s letter recommended that the inclusion or exclusion of GST on invoices be reviewed by another expert. Second Draft Report [101] On 11 September 2020, the plaintiff’s solicitors informed Ms Rudken that the First Draft Report did not include outgoings for the 2019/2020 financial year. [102] On 16 September 2020, Ms Rudken provided the Second Draft Report. It comprised a schedule in the same format as the schedule to the First Draft Report for the 2019/2020 financial year. [103] The Second Draft Report was in draft and required further information on a number of items. [104] It did not contain an assessment of outgoings in respect of the 2012/2013 financial year. The transition to Mr Cox [105] Ms Rudken left Cushman & Wakefield on 17 September 2020. On 24 September 2020 the defendant’s solicitors wrote to Mr Cox. They referred to the parties’ agreement for Cushman & Wakefield to be appointed as a Joint Expert. The letter referred to Ms Rudken’s work and that she had left Cushman & Wakefield. It enclosed emails and letters which had been received by her. The letter continued: “You will note with respect to both of these, she has highlighted in yellow those outgoings where she didn't have sufficient information to make a determination. You will see from my submissions to her that the onus is on the landlord to provide that information and to the extent that the landlord failed to do so within the time specified by the adjudicator, the expenses must be disallowed. -- 21 of 33 -- 22 Likewise the adjudication agreement itself does not permit submission of material after the initial round of submissions, and as such the request for further information may well be out of order within the terms of the adjudication agreement. In any event, the landlord did not avail themselves of the opportunity to provide further information.” [106] The letter went on to state: “Would you please have the reports completed by: a. Completing the assessment for the 2012/2013 financial year which appears to have been omitted from these reports. b. Determining whether the highlighted section in Ms Rudkens' reports are allowed as expenditures or not (including any reasonable apportionment if you consider that appropriate) and insert the relevant entries in the disallowed columns. c. Collate the total amounts disallowed for each of the relevant years and deduct that from the amounts actually charged by the landlord to give the allowable outgoings charges. d. Apply the funds actually paid by the tenant against the allowable charges so that you can come up with a net figure either owing by the landlord to the tenant, or the tenant to the landlord as the case may be, after consideration of all of the outgoing years from year end of 2013 to year end of 2020, and all payments paid by the tenant including payments to my trust account pursuant to the agreement, details of which are attached.” [107] The letter concluded by noting that the report had to be completed by no later than 30 October 2020, that Ms Rudken had done the substantial bulk of the report and that “presumably yourself or another qualified officer can complete this work and sign off the report on behalf of the appointed joint expert, Cushman & Wakefield”. [108] The plaintiff submits that the letter of 24 September 2020 made submissions in breach of clause 9 of the agreement which requires the parties to instruct the expert to disregard any submission not made in accordance with clause 8 (which requires consent of both parties). [109] The plaintiff sent a response to Cushman & Wakefield about an hour after receiving the defendant’s solicitors’ letter. It raised a number of issues about the first and second draft reports including: (a) the First Draft Report was only provided to the plaintiff on 7 September 2020; (b) the First Draft Report did not contain an assessment of the 2012/2013 and 2019/2020 financial years; (c) the Second Draft Report did not contain an assessment of the 2012/2013 financial year; (d) the plaintiff disagreed with the calculations; -- 22 of 33 -- 23 (e) the First and Second Draft Reports referred to the Retail Shop Leases Act 1994 which the parties agreed did not apply. [110] The plaintiff proposed that a new expert be appointed and the process start again. The letter stated: “… we are instructed to propose that the current report by Ms Rudken is never to be finalized or issued, and that the parties engage another suitably qualified expert within Cushman & Wakefield, or from another firm, to undertake this process again.” [111] On 28 September 2020, the defendant’s solicitor sent a letter in reply. Relevantly, the letter stated: “When viewed correctly Ms Rudken's report is eminently sensible and is consistent with the claim that the [defendant] has been making all along. It is an endorsement of our client's claim and of course we seek to have that adjudication enforced. We do not seek any departure from the terms of the draft as submitted, only completion of the outgoing entries not yet completed. To the extent the Landlord has not satisfied the Adjudicator that an outgoing is recoverable, it should be disallowed, to bring about completion of the reports.” [112] On 6 October 2020, the plaintiff withdrew its consent to another expert starting the process again. The plaintiff’s solicitor sent a letter stating: “… our client is deeply concerned that the process undertaken by Cushman & Wakefield to date to prepare the outgoings assessment is significantly flawed. This has led to the calculation of assessed outgoings which, as set out in our previous letter, cannot be correct on either a legal or practical basis. Accordingly, notwithstanding that we previously refer to our client's instructions to propose that another expert within Cushman & Wakefield undertake the assessment process again, we are now instructed that our client has lost all faith in Cushman & Wakefield to undertake this assessment, and will not accept any finalisation of the report by Cushman & Wakefield. As set out in our previous letter, should you decide to finalise the report in its current form, we hold instructions to apply to the Supreme Court to set aside the outgoings assessment contained in the report on the basis that the outgoings assessment is clearly and grossly incorrect. Accordingly, we are instructed to seek confirmation that Cushman & Wakefield do not intend to finalise and issue the report.” [113] On 14 October 2020, the defendant’s solicitor again wrote to Mr Cox about the 2012/2013 financial year. Mr Cox’s report [114] Mr Cox sent a letter dated 19 October 2020 together with an attached spreadsheet. The 19 October 2020 letter was amended to correct some calculations so as to ensure -- 23 of 33 -- 24 that total amounts included figures for the 2020-2013 year. A new letter dated 21 October 2020 was sent. It, together with the schedule sent on 19 October 2020, have been described by the plaintiff in these proceedings as “the Purported Report”. [115] The letter recited how Mr Cox had amended the previously colour-coded line items where there had been insufficient information or clarification required. He said he had added his best estimate of any amount to be disputed or rejected. A new table had been included for the 2012-13 period. He advised that these documents should be read “in conjunction with all previous correspondence”. [116] In respect of the 2012/2013 financial year outgoings Mr Cox stated: “These have been estimated and revised based on the 6 invoices in Annexure C, and Schedule B contained in ther (sic) letterfrom (sic) P.M Lee and Co. dated 14th October 2020.” [117] The letter of 21 October 2020 contained what was said to be a summary of “our findings”. This consisted of a table headed “Russell Island IGA – Schedule of Disputed Outgoings”. [118] The first row of the table consisted of what was described as “Disputed Items (Landlord Claims)”. Figures appeared for each of the relevant financial years with a total of disputed items of $1,804,755.70. [119] The next row in the summary was described as “C&W Determined Over Charge”. Figures were recorded for each year, leading to a total of $1,467,743.61. [120] The letter noted, that, as previously stated, the amount shown in the spreadsheets were “the full gross amounts, prior to the application of the tenant’s apportionment”. The letter reiterated points that had earlier been made by Ms Rudken in relation to the basis of audit preparation and GST. [121] The schedule completed by Mr Cox was based upon the schedules which had been prepared by Ms Rudken. [122] The schedule indicates that some items which Cushman & Wakefield determined were an “Over Charge” was on the basis that further evidence had not been provided by the plaintiff. For example, in relation to items in which Ms Rudken had commented “we cannot comment on this item as we do not have operational knowledge of the site. The lessor should provide evidence this service was undertaken”, Mr Cox disallowed the amounts. [123] By way of further illustration, Ms Rudken had raised issues about gardening expenses. Gardening charges had been made in respect of charges from an entity called Networks 4184 Pty Ltd and there were also invoices from Going Mowing. The invoiced amounts were different. In her letter of 28 August 2020 Ms Rudken had commented that to prove the expense submitted by Networks 4184 Pty Ltd was a legitimate expense “the scope of services for both suppliers should be provided and compared”. Mr Cox disallowed the relevant amounts for Networks 4184 Pty Ltd. -- 24 of 33 -- 25 Was Mr Cox required to start the process again? [124] As noted, the plaintiff submits that if Mr Cox was allocated by Cushman & Wakefield then he failed to start the process again. He determined matters in relation to the 2012/2013 financial year and also relied upon the First and Second Draft Reports which had been prepared by Ms Rudken. [125] The third issue identified by the parties and quoted in [14] frames the issue as whether Mr Cox was “required to start the expert process again or could he rely on the work completed by Ms Rudken”. In my view, the essential issue is what the firm was required to do, having allocated Ms Rudken and then Mr Cox as an appropriate expert with expertise in retail shopping centre management and/or valuation. To the extent that the firm had not completed the task entrusted to it by the time Ms Rudken left, the firm, and Mr Cox in particular, was required to undertake the assigned task. He was not bound to adopt Ms Rudken’s methodology, her mathematics or her views. Nor was he required to ignore the work which she had done. [126] Given the commercial context in which an expert determination was required within a relatively short time, with the parties being obliged to each pay half the costs of the Joint Expert, it seems improbable that the parties intended that a successor “expert” like Mr Cox was required to start with a blank page, and duplicate processes which had already been undertaken, such as the preparation of a spreadsheet which listed disputed items and Ms Rudken’s comments in the spreadsheet about matters that required clarification or further information. [127] Therefore, I do not accept that Mr Cox was required to start the process afresh. As to reliance on Ms Rudken’s work, if he was satisfied about her approach or methodology and shared the views expressed by her, then he might rely upon her work and adopt some of her workings. If, having considered the criticisms made by the plaintiff of her work, he adopted the same approach or the same findings as Ms Rudken, and those were erroneous, then the errors would be those of the Joint Expert. Were submissions improperly made? [128] Earlier I quoted clause 8 of the agreement by which the parties agreed that, to assist the Joint Expert in preparing the determination, either party might submit documents upon which they wished to rely along with supporting written submissions by certain dates, together with documents or submissions in response a week later. Clause 8(c) stated that the parties may submit “other documents to the Joint Expert at other times only with the consent of both parties”. [129] Clause 9 is quoted above at [29]. The parties agreed to instruct the Joint Expert to disregard any documents or submissions that were submitted otherwise than in accordance with clause 8. Clause 9A provided for any communications between the parties and the Joint Expert to be in writing and with a copy provided to the other party. Clause 10 involved an agreement by the parties to use their best endeavours to fully respond to and answer any queries or requests posed by the Joint Expert. [130] The plaintiff correctly submits that the purpose of clauses 8 and 9 was to establish a procedure for making submissions to the expert and affording a level of procedural fairness. It argues that the defendant made submissions without its agreement and thereby breached clause 8(c) of the agreement. Mr Cox is said to have acted on those -- 25 of 33 -- 26 submissions and to have breached clause 9. This is submitted to mean that his report was not made in accordance with the agreement. [131] The plaintiff particularly relies upon the letter from the defendant’s solicitors dated 24 September 2020 which I have earlier quoted. That letter was sent after Ms Rudken ceased to work for Cushman & Wakefield. It was a letter which acquainted Mr Cox with the situation that had arisen and proposed a way forward. The letter was copied to the plaintiff’s solicitors, who responded within an hour. The parts of the letter which the plaintiff says constituted submissions to Mr Cox simply and shortly identified submissions which had already been made to Ms Rudken, being submissions which Mr Cox would be required to consider in carrying out the task. The defendant’s solicitors dated 24 September 2020 did not contain new submissions on matters of substance. Essentially, it was a letter about the process for Mr Cox or another qualified person to complete the task on behalf of the appointed Joint Expert, Cushman & Wakefield. That communication was copied to the plaintiff’s solicitors, as required by clause 9A of the agreement. [132] If the defendant’s solicitors’ letter dated 24 September 2020 amounted to an impermissible submission in breach of clause 8(c), then the same must surely apply to the plaintiff’s solicitors’ letter of the same day. It critiqued and disagreed with the contents of calculations in the report by Ms Rudken. It criticised her reference to the Retail Shop Leases Act and proposed that her report was “never to be finalized or issued, and that the parties engage another suitably qualified expert within Cushman & Wakefield, or from another firm, to undertake this process again”. [133] Each party’s solicitors letter of 24 September 2020 should be treated alike as communications about the process. If any party made unauthorised submissions, then it was the plaintiff in making submissions about alleged errors in Ms Rudken’s report. [134] It is unnecessary to consider the defendant’s submissions about the terms of clause 9 which note that it concerns an agreement by the parties to instruct the Joint Expert, and that it should not be read as if it imposed an obligation on the Joint Expert. In my view, the defendant did not breach the relevant clauses in communicating with Mr Cox on 24 September 2020 and Mr Cox did not breach clause 9 when he had regard to communications about what he and the Joint Expert should do to complete the required task. [135] The defendant’s solicitors’ letter of 28 September responded, permissibly in my view, to the criticisms made by the plaintiff’s solicitor of Ms Rudken’s report. [136] The defendant’s solicitors were also entitled to write to Mr Cox about the 2012/2013 financial year since this was a matter left incomplete by Ms Rudken (as the plaintiff had noted) and to identify invoices to enable the determination to be completed. At this time there was an issue between the parties about the plaintiff’s alleged failure to produce invoices to support its claim for the 2012/2013 year. The defendant’s solicitors’ letter of 14 October 2020 concluded: “To assist the expert, we have reviewed the documents in the brief to identify any invoices, audits or summaries 2012/2013 period and have been unable to find anything other than: a) those that have been referred to earlier in this letter and -- 26 of 33 -- 27 b) 6 invoices particularised in annexure ‘C’ to this letter.” Rather than being an impermissible submission in breach of clause 9, this letter sought to assist Mr Cox to determine a matter which Ms Rudken had not determined. [137] I conclude that Mr Cox did not fail to observe the required process in circumstances in which Ms Rudken’s departure and incomplete work prompted both parties to communicate with him and each other during this period about how the process should be undertaken by Mr Cox and the material to which he should have regard to address unresolved issues and provide a final determination. It would be odd, given the plaintiff’s contention that Mr Cox had to start the process again, if Mr Cox could not consider submissions in late September and October about the process and issues that Ms Rudken had left outstanding. Alleged misconstruction about application of the Retail Shop Leases Act, advertising, cleaning and maintenance, security and insurance expenses Relevance of the Retail Shop Leases Act 1994 [138] The plaintiff complains that Ms Rudken excluded certain categories of costs from the definition of “Outgoings” because she applied the Act. The defendant rejects this criticism as misunderstanding the approach of Ms Rudken and the Joint Expert. [139] When briefed by the defendant’s initial submissions, Ms Rudken was informed that the lease was not a “retail shop lease” within the meaning of the Act because the leased premises had a floor area of more than 1,000 square metres. This instruction appeared very early in the defendant’s submissions and it seems unlikely that Ms Rudken overlooked it. I am not persuaded that she did. [140] Her First Draft Report dated 28 August 2020, in explaining her conclusions, noted in respect of advertising that “the cost of advertising is not permitted under the Retail Shop Leases Act 1994”. That was a relevant observation because the lease’s definition of outgoings imported amongst the specific exclusions “any other item prescribed by regulation in the Act”. Section 7(3)(f) of the Act excludes from outgoings a lessor’s contributions to merchants’ associations and centre promotion funds. In other words, Ms Rudken was not saying that this provision applied to the lease because the lease was subject to the Act. She was excluding advertising expenses as falling within a specific statutory exclusion picked up by the lease’s definition of “Outgoings”. At the hearing Counsel for the plaintiff did not press submissions about advertising. Expenses directly related to other specific tenancies [141] An issue arises about cleaning and other expenses directly related to a specific tenancy or tenancies. Ms Rudken concluded that any expenses incurred that directly relate to a specific tenancy were not recoverable. She added that these expenses “cannot be recovered under Outgoings as per Retail Shop Leases Act 1994”. The second point is open to debate having regard to the meaning of “outgoings” in section 7 of the Act. However, the point of substance in respect of the lease’s provisions was whether cleaning and other expenses directly related to a specific tenancy should be treated as the lessor’s “reasonable expenses directly attributable to the operation, maintenance or repair of the Building …”. Views may differ about -- 27 of 33 -- 28 that. Even if Ms Rudken was wrong in her judgment about the reasonableness of those expenses and whether they were “directly attributable”, any error in that judgment or opinion would not be an error which invalidated her determination. She did not say that the Act directly applied to the lease. It seems that she took the same view on reasonableness and to “directly attributable” under the lease to the position which she understood obtained to the same wording in the Act. This was an evaluative judgment she made in carrying out the task entrusted to the Joint Expert in applying the words of the lease in reaching an opinion about whether certain expenses fell within the definition. Repairs and maintenance [142] Ms Rudken observed in this context that “any costs of a capital nature or directly relating to a specific tenancy or tenancies should be excluded from the outgoings”. She did not refer in this regard to the Act. The reference to costs of a capital nature was apposite given the specific exclusion in the lease’s definition of “Outgoings” for expenditure of a capital nature. Her view about whether costs directly related to a specific tenancy should be excluded from the outgoings raises the issue I have just discussed. This is a matter of judgment rather than a point of law about the proper construction of the lease. Any error of judgment or error of fact concerning repairs and maintenance is insufficient to invalidate the Joint Expert’s determination. Security system leasing [143] Ms Rudken concluded that certain costs were not reasonable. These included the plaintiff’s claims about its security system. She concluded that the monthly cost of $1,640 was unreasonable. The point at issue arising from the parties’ submissions was that the largest part of the claimed cost of security entailed reviewing CCTV video and images recorded on the security system for the purpose of preventing anti- social behaviour at the shopping centre or assisting police and other persons with inquiries. Ms Rudken’s decision about the costs of security was expressly made on the basis of their reasonableness. She did not find, as a matter of construction, that security costs were not recoverable. Her concern was that the amount claimed was unreasonable. [144] The plaintiff seeks to make something of the fact that the heading or label “Security System Leasing” appears in the report when the claimed costs were not only for leasing and included costs for reviewing security footage. The label or heading does not alter the substance of the issue. The relevant issue is that the plaintiff claimed substantial costs which included the costs of reviewing security footage and the Joint Expert regarded those costs as unreasonable. This involved an acceptance of the defendant’s submissions and a rejection of the amount of the plaintiff’s claim. Even if it be supposed that an error was made in reaching a conclusion on that issue, it would not be a reviewable error. It was a matter of judgment or opinion entrusted to the expert to determine. Insurance [145] The plaintiff’s complaint about the Joint Expert’s determination of insurance costs is of a different kind. -- 28 of 33 -- 29 [146] The plaintiff made submissions to the Joint Expert about the process of obtaining an insurance policy and advised that “the only package of insurance that the Landlord has been able to obtain at a reasonable rate is the package that includes Business Interruption Insurance”. Submissions followed as to whether the whole of the premium should be claimed. [147] Ms Rudken correctly observed in the First Draft Report that under the definition of “Outgoings” costs associated with insurance premiums were included but the cost of insurance for loss of profits was excluded. She noted that the premiums did not separate this excluded element from the total policy amount. [148] There was no misconstruction of the lease by her. [149] The plaintiff might have, subject to the procedural requirements contained in the agreement and to assist Mr Cox in completing the task, provided further submissions and material as to whether there should be some apportionment of the claimed cost for insurance to take account of the fact that the premium included business interruption insurance. [150] Ultimately, the Joint Expert did not allow an amount for insurance, presumably on the basis that, as defence counsel submitted to the Court, it was not appropriate to allow as a recoverable expense an undifferentiated insurance expense that included premiums for loss of profits. The Joint Expert might be regarded as having decided the matter on the basis that it was for the plaintiff to provide a submission or material from an insurance broker, agent or underwriter about an appropriate apportionment having regard to the inclusion of business interruption insurance. In any event, rather than allow the whole amount on the basis of the plaintiff’s argument that the only insurance cover available included business interruption insurance or make some rough apportionment based on the expert’s experience, the Joint Expert declined to allow that part of the plaintiff’s claim on the basis of lack of proof of the quantum of the allowable expense. If there was any error in making that decision, it was one made in the course of performing the assigned task and would not invalidate the determination. It was not an error in the construction of the lease, including its definition of outgoings. Conclusion on alleged errors [151] In summary, the plaintiff has not established a case for setting aside the determination on the basis of the arguments which I have grouped under this third heading. Did the Expert undertake the wrong task, fail to perform or complete the required task or misunderstand the task? [152] The task entrusted to the Joint Expert is discussed at [84]-[88]. Earlier, I previewed the issue of whether the Joint Expert failed to perform the required task because it did not perform the essentially mathematical task of deducting from the amount claimed (about which there is no dispute) the amounts which it found to be overcharged. [153] The plaintiff submits that the reports, including the schedules to them, did not set out what the plaintiff could charge in outgoings for each of the financial years, namely the annual allowable expenditure incurred on “Outgoings”. Instead, the Joint Expert determined that certain amounts were overcharged or wrongly claimed as outgoings -- 29 of 33 -- 30 (prior to any apportionment), without stating what could be claimed as outgoings under the lease. [154] According to the plaintiff, it is not possible to reverse engineer what the expert did with what the expert was required to do because: (a) the expert did not use the amounts that the plaintiff actually charged the defendant in outgoings; (b) the expert only referred to the certain invoices which the defendant disputed; (c) the expert did not make findings on all invoices; (d) the expert did not opine on what amount of outgoings the plaintiff could charge; (e) the expert did not set out whether the amounts included or excluded GST. Some items in the schedules included GST and some did not. However, the schedules do not state whether GST is included. Rather the expert said the invoices should be audited. [155] The defendant’s submissions in response are summarised at [89] above. The defendant points out that for each relevant year, the Joint Expert’s final report set out the precise amount that the Joint Expert determined was the amount by which outgoings had been over-charged for that year. The report also expressly stated that it should be “read in conjunction with all previous correspondence”. That correspondence stated, and there was no dispute about, the total amounts claimed by the plaintiff as outgoings for each relevant year. For example, these amounts were stated in paragraph 28 of the plaintiff’s submissions to the Joint Expert, and set out in detail in Schedule B to those submissions. They contained itemised outgoings, listed alphabetically, and a total amount for each financial year (excluding GST). These amounts were not disputed. [156] The defendant’s position, therefore, is that there was no need for an express finding about the starting point for the required calculation. The starting point was not in contest. The findings about the amount over-charged for each relevant year simply needed to be deducted from that starting point. Mr Black of counsel for the defendant tabulated this mathematical exercise as follows. The second column is drawn from the undisputed schedules of outgoings placed by the plaintiff before the Joint Expert. For the financial year … The Plaintiff claimed total expenditure on Outgoings of (Tab 26, pp 305-312) … The expert disallowed expenditure of (Tab 54, p 825) … The total allowable expenditure for Outgoings is … 2012/2013 $220,439.00 $128,767.00 $91,672.00 2013/2014 $273,135.00 $218,094.84 $55,040.16 2014/2015 $263,691.00 $178,733.43 $84,957.57 2015/2016 $304,645.00 $171,666.94 $132,978.06 2016/2017 $311,073.00 $202,888.71 $108,184.29 2017/2018 $359,223.00 $209,297.83 $149,925.17 2018/2019 $332,961.00 $152,846.91 $180,114.09 2019/2020 $394,265.33 $205,447.95 $188,817.38 -- 30 of 33 -- 31 [157] In oral submissions Mr Schriiffer of counsel acknowledged that if the report had identified a starting point, being the amounts that were claimed for each year, and if it was simply a question of mathematics, then there would be no complaint. However, the complaint is that in the absence of an express finding about the starting point, one cannot work out the amount from which the over-charge is to be deducted. In addition, it is not clear whether the amount to be deducted includes or excludes GST. [158] One aspect of the argument relates to commentary in the reports about the basis of the audit preparation and the possibility that some claimed expenses may have been captured in the incorrect year. However, I accept Mr Black’s submission that the parties and the experts were prepared to work from the audited figures as the starting point, and then identify what aspects of those claimed amounts were in dispute. [159] Before returning to the GST issue I should reach a conclusion about the general proposition that the report completed by Mr Cox on 21 October 2020 needed to expressly state what may be described as the “starting point”, namely the amount claimed by the plaintiff as outgoings, based upon the audited statements upon which the plaintiff relied in its submissions to the Joint Expert and invoices that supported them. I am inclined to accept that the Joint Expert adopted this starting point, which was not in dispute, and was not required to expressly incorporate those figures in Mr Cox’s letter dated 21 October 2020. That letter indicated that the findings in relation to disputed items (which were tabulated) and the amounts over-charged were to be read in conjunction with all previous correspondence. That correspondence stated the total amount claimed in each financial year. Therefore, there was an implied adoption of those undisputed amounts. [160] Absent the complexity that arises in relation to the GST issue, if the matter was simply a process of arithmetic, then the Joint Expert’s report would have incorporated a starting point for each year and findings about the amount to be deducted from that starting point so as to arrive at the allowable expenditure for each year. The expert’s task would have been effectively completed, subject to an uncontroversial and simple arithmetic exercise. [161] The GST issue, however, complicates the matter. I have already noted what was said in each report about GST. It is convenient to set out that note at this point: “Some of the invoice amounts stated in the spreadsheet provided, include GST and other amounts exclude GST. In order to calculate the total overcharge, the invoice amounts will have to be reviewed and confirmed. We recommend this final summary is prepared by a Chartered Accountant.” [162] The plaintiff complains that because some amounts in the relevant schedules include GST and some do not, there is a real problem because it is not possible to go through the schedule and do some form of reconciliation. It is not apparent whether the amounts include or exclude GST. The Joint Expert indicated that to calculate the total over-charge the invoiced amounts would need to be reviewed in this regard. The expert suggested that this might be done by a chartered accountant. However, the parties did not agree for a chartered accountant to be appointed and the exercise was not completed by the Joint Expert. -- 31 of 33 -- 32 [163] Mr Black submitted that this was not a problem. The plaintiff’s claimed amounts for outgoings were exclusive of GST and if there was any mistake in that calculation it was of no consequence. Clause 17 of the lease was said to deal with the issue of GST. Mr Schriiffer responded that the uncertainty over whether the invoiced amounts in the schedule included or excluded GST meant that the required exercise was not a question simply of mathematics. If a particular invoice was disallowed then it would be necessary for someone to work out whether the amount included or excluded GST. In addition, where the expert determined an amount, such as the amount of $4,000 per annum for septic maintenance, it was not apparent whether the $4,000 amount included or excluded GST. The schedule showed that the expert addressed various claims of $5,000 for septic maintenance by adopting an annual maintenance estimate of $4,000 per annum. The tabulated amount of the overcharge for each such claim in the schedule was $4,666.67. Expressed differently, the amount allowed by the expert for the claim of $333.33 may or may not have included GST, depending upon whether the $4,000 per annum amount included or excluded GST. As Mr Schriiffer submitted at the hearing, the exercise is not a case of simple mathematics. It requires firstly an assumption about GST and then a further task to be undertaken. [164] Mr Black responded to this argument with the reasonable point that if the amounts claimed by the plaintiff were exclusive of GST then, after the relevant deduction, the remaining $333.33 would also be exclusive of GST. He argued that there was no other way of reading the items and that, in any event, GST was dealt with in the lease. Finally, he submitted that even if some work needed to be done in respect of GST, that was not the expert’s role. [165] In my view, a problem remains because the report does not disclose in respect of each disallowed amount or invoice whether the expert was disallowing an amount that was inclusive or exclusive of GST. Accepting for the purpose of argument that the starting point for calculation was exclusive of GST, the Joint Expert’s report did not disclose whether each amount which it determined to be an over-charge, or the total amount determined as an “Over Charge” for each year was exclusive of GST. The report suggested that more work needed to be done in order to properly calculate what the GST note described as “the total Over Charge”. [166] For this reason, I conclude that, unfortunately, the Joint Expert’s determination did not complete, to a very limited extent, the task required. It was not sufficient to say that the required exercise in relation to GST might be done by someone else. It may have been a constructive suggestion for the Joint Expert to say that the finalisation of the figures be undertaken by a chartered accountant. However, the parties did not agree to this. The parties might have responded to Mr Cox that his firm should undertake the exercise or engage an accountant to assist it in that regard with the cost of doing so featuring in the Joint Expert’s costs. However, this did not occur. As a result, the relevant task was not completed, albeit in a minor respect. [167] In the result, the expert’s determination does not permit a simple mathematical exercise to be undertaken so as to arrive at a precise figure for each year as to the annual allowable expenditure incurred on outgoings, expressed as being either inclusive or exclusive of GST. -- 32 of 33 -- 33 Conclusion [168] The plaintiff has failed to establish all but one of its challenges to the expert determination. To use a possibly unfashionable football metaphor, there was an “ankle tap” and the expert determination does not quite get over the line. [169] The issue then becomes one about the relief which should be granted. The first form of relief claimed by the plaintiff is as follows: “A declaration that no Joint Expert determination has been made pursuant to the Mediation Agreement between the Plaintiff and the Defendant dated 23 June 2020”. [170] An alternative order is sought that the determination made by Mr Cox be set aside. A further or alternative declaration is sought that the determination is not final and binding on the plaintiff or the defendant. [171] Paragraph 4 of the prayer for relief sought an order that “an independent third party be appointed as an expert to make a Joint Expert determination pursuant to the Mediation Agreement, with amendments to the timeframes”. At the hearing before me the parties indicated that, if the plaintiff succeeded, it would be necessary for the parties and the Court to consider the appropriateness of making such an order. That was a sensible approach since such an order has the potential to be wasteful of costs and productive of delay. I should allow the parties the opportunity to consider what should be done in the light of my findings, including whether the Joint Expert or some other party is asked to perform the accounting exercise over GST which I found was not completed. [172] The parties also should be given the opportunity to consider the issue of the costs of this proceeding, given the measure of success enjoyed by each party. [173] My present inclination is to make a declaration in terms of paragraph 1 of the prayer for relief, which I have quoted above. However, it would be best for the parties to consider what declaratory or other relief is appropriate in the light of my findings and to resolve, if possible, the question of costs. [174] If necessary, I will hear the parties on the forms of orders to be made by me and any question of costs which I am asked to determine. The only order which I will make at this stage is to direct that the matter be adjourned to a date to be fixed for the making of orders and any submissions as to costs. -- 33 of 33 --