EXPERT DETERMINATION JUDGMENTS
2015
Bidois v Leef [2015] NZCA 176 18 May 2015 (NZ Court of Appeal)
Appeal from decision to set aside award on basis the dispute was not one which could in law be the subject of an arbitration agreement – s2 Arbitration Act – meaning of defined legal relationship – natural justice – conflict of interest and fair hearing rights – arbitration or expert determination – Sch 1, art 4 Waiver of right to object
Court of Appeal held that there was a requisite defined legal relationship, stating that it was incorrect to suggest the issue being arbitrated must be ultimately determinative of the whole contest between the parties [50] and finding that the arbitration did have direct consequences on the entitlement to a share of the settlement funds proceeds [52]. Looking at the overall context, the Court was satisfied that the issue between the parites could properly be the subject of an arbitration agreement.
The Court also rejected the argument that one party could fail to object to the appointment of an arbitrator where it had full knowledge of the relevant conflict, but then be permitted to object at a later time (after the award was published). It also did not find there was a process breach in terms of the failure to provide a copy of documents relied on to the other side (those documents being otherwise made available). The Court concluded that what occurred flowed directly from the process that the parties agreed to [93].
Appeal allowed.
2014
Bidois v Leef [2014] NZCA 271 25 June 2014 (NZ Court of Appeal)
s2 Arbitration Act 1996 – meaning of defined legal relationship – application for leave to adduce further evidence in support of appeal against decision of Andrews J finding that the mana whenua dispute was not a dispute “in respect of a defined legal relationship” and was therefore not an arbitration
Further evidence must be fresh, credible and cogent and will not be regarded as fresh if it could with reasonable diligence have been adduced at trial. Evidence that is not fresh will only be admitted in exceptional and compelling circumstances [15].
Application granted on the basis that, whilst the question of whether the process was in fact an arbitral tribunal process was raised during the hearing, the focus appeared to have been on a different aspect of that questions, namely whether the parties intended to submit to arbitration or an expert determination.
2013
TTAH Limited v Koninklijke Ten Cate NV [2013] NZHC 3029 14 November 2013 (NZ High Court)
Lighter Quay Residents’ Society Inc v Ors v Waterfront Properties (2009) Ltd [2013] NZHC 2678 15 October 2013 (NZ High Court)
Leef v Bidois [2013] NZHC 1349 10 June 2013 (NZ High Court)
2012
Mariteq Fabricators Ltd v Quigley’s Technical Services Ltd CIV 2012-470-533 12 November 2012 (NZ High Court)
TTAH Limited v Koninklijke Ten Cate NV CIV-2010-404-8250 18 June 2012 (NZ High Court)
2003
Methanex Motunui Ltd v Spellman [2004] 1 NZLR 95 18 August 2003 (NZ High Court)
expert determination – whether proceeding expert determination or arbitration
The Court held inter alia that, when interpreting the Arbitration Act 1996, the purposes of finality and party autonomy had to be balanced against the intention that parties be afforded minimum standards of procedural protection. In the present case the parties had expressed themselves in an apparently contradictory manner by appointing an expert to determine the matter while stating that the process was to be an arbitration. Although the issue was to be resolved by identifying the dominant contractual intent, where the parties use the language of arbitration the Court would not lightly assume that a mere expert determination was intended which precluded the rules of natural justice.