Abigroup Refused Injunction to halt expert determination

Abigroup was yesterday again refused an injunction to restrain the designers of the bascule bridges for the Port River Expressway project at Port Adelaide, Hardesty & Hanover International LLP, from pursuing an expert determination procedure as a means of enforcing payment of Hardesty & Hanover's fees.

In its application before the Supreme Court of South Australia, Abigroup argued that the alternative dispute resolution procedure in its contract with Hardesty & Hanover was void, or that if it was not void, Hardesty & Hanover were only entitled to this prompt method of dispute resolution if it also referred another dispute, relating to the omission by Abigroup of necessary ship impact protection measures from its tender price.

Hardesty & Hanover argued that it was entitled to the benefit of the expert determination procedure in the contract to refer disagreements about payments of its fees as they arise, without having to wait until completion of the work, which is not now anticipated until about July 2008.  The outstanding fees as claimed by Hardesty & Hanover are in excess of $1 million.

The expert appointed by Engineers Australia, Mr Colin Fullerton, had already decided by way of preliminary issue that he did have jurisdiction to make the determination, and Abigroup had also been refused a holding injunction last week (see note).

After full argument, Judge Lunn decided that this was not an appropriate case for an injunction, thus clearing the way for Mr Fullerton to proceed with the expert determination sought by Hardesty & Hanover. See transcripts of argument and judgment.

Counsel for Hardesty & Hanover were Robert Fenwick Elliott and Tom Grace; Abigroup were represented by Stephen Walsh QC and Toby Shnookal.

13th February 2008