Decision in Abigroup Port River Expressway litigation

The Full Supreme Court of South Australia today handed down its decision in the Abigroup Port River Expressway litigation.

Judgement of the Full Court – Abigroup Contractors P/L v Hardesty & Hanover International LLC [2008] SASC 369

Engineers Hardesty & Hanover have obtained two expert determinations requiring Abigroup to pay its fees but Abigroup refused to pay. In response to the first summary judgment application, Abigroup has paid the whole amount on a secured basis, but opposed a separate and early trial of the enforceability issue, and argued that enforcement should be postponed until a retrial by the court of all the disputes determined by the expert, and others. At first instance, Gray J refused to order separate trial, and refused leave to appeal. The Full Court has now overturned both those refusals.

The case is important as signalling recognition by the Supreme Court that expert determinations should be given effect to if the parties have agreed be bound by such determinations. The court accepted the approach of Robert Fenwick Elliott, as counsel for Hardesty & Hanover, that unless the court promptly enforces expert determinations by separating them from complex underlying issues, the policy lying behind them would be negated.

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