This case demonstrates that the onus for establishing the unreasonableness of the terms of a retainer for an independent expert falls on the party asserting the unreasonableness. Where parties have agreed to expert determination and the method of appointment in the event of a dispute, the expert is able to request reasonable terms, including protection from claims.
The plaintiff, Mr Justice, held a one-half share in a property with the defendants Anna Wright and Graham Wright (the Wrights), with their right to sell their interests being subject to a deed of agreement and indemnity (Deed). The case arose from a dispute concerning the appointment of an expert valuer pursuant to the Deed, after Mr Justice told the Wrights that he wished to sell his interest to them.
When the parties failed to appoint a mutually acceptable valuer, the President of the Real Estate Institute of NSW nominated a valuer, Mr Eccleston, in accordance with the terms of the Deed. However, the Wrights objected to an indemnity in Mr Eccleston’s retainer relating to claims in connection with the valuation. Mr Justice claimed that the appointment was binding on the Wrights.
The Court, in deciding for Mr Justice, held that the onus for showing the unreasonableness of the terms of the expert’s retainer fell on the party asserting the unreasonableness (ie the Wrights). The Court also noted that the indemnity in Mr Eccleston’s retainer was not unreasonable, in light of its express limitations.