Will the expert determination clause in your construction contract hold up for dispute resolution?

When drafting construction contracts, dispute resolution provisions will often receive less attention than they deserve. Expert determination is one form of dispute resolution that, depending on how it works under the terms of the contract, is generally quick, cost-effective and suitable for a variety of disputes.

Despite the advantages of expert determination, an expert's decision may be hard to challenge and can have severe financial consequences upon parties if they don't understand their rights to enforce or challenge a decision. This was apparent in the recent NSW Supreme Court decision in CPB Contractors Pty Ltd v Transport for NSW [2021] NSWSC 537.

Background

The decision concerned a road-widening contract between CPB Contractors (CPB) and Transport for NSW (TfNSW). The parties disputed CPB's entitlement to payment for the removal of excess spoil accumulated during the road widening works. CPB claimed an entitlement of $11.4 million but was only paid