CONDITION PRECEDENT
TO THE PAYMENT OF THE MILESTONE PAYMENT DUE AFTER THE COMPLETION DATE FOR THE
NTS MOBILISATION PHASE.
(C)
THE PARTIES MUST COMPLY WITH THE TERMS OF THE EXPERT DEED.
(D)
IF THE EXPERT DEED IS TERMINATED, THE PARTIES MUST APPOINT A
NEW EXPERT, ON THE TERMS OF SCHEDULE 14, WITH AMENDMENTS IN WRITING AS
REASONABLY REQUIRED BY THE EXPERT AND CONSISTENT WITH THE TERMS OF THIS
AGREEMENT, OR AS OTHERWISE AGREED BETWEEN THE PARTIES AND THE EXPERT.
IF THE
PARTIES ARE UNABLE TO AGREE UPON THE IDENTITY OF A NEW EXPERT WITHIN 10 BUSINESS
DAYS OF THE TERMINATION OF THE EXPERT DEED, OR WITHIN A TIME OTHERWISE AGREED
BETWEEN THE PARTIES, THEN EITHER PARTY MAY REQUEST THE AUSTRALIAN COMMERCIAL
DISPUTES CENTRE (ACDC) TO NOMINATE AN EXPERT.
174
(E)
THE EXPERT MUST:
(I)
ACT AS AN EXPERT AND NOT AS AN ARBITRATOR;
(II)
PROCEED IN ANY MANNER HE OR SHE THINKS FIT WITHOUT BEING
BOUND TO OBSERVE THE RULES OF EVIDENCE;
(III)
TAKE INTO CONSIDERATION ALL DOCUMENTS, INFORMATION AND
OTHER MATERIAL WHICH THE PARTIES GIVE THE EXPERT WHICH THE EXPERT IN HIS OR HER
ABSOLUTE DISCRETION, CONSIDERS RELEVANT TO THE DETERMINATION OF THE DISPUTE;
(IV)
NOT BE EXPECTED OR REQUIRED TO OBTAIN OR REFER TO ANY OTHER
DOCUMENTS, INFORMATION OR MATERIAL BUT MAY DO SO IF HE OR SHE SO WISHES;
(V)
ACT IN GOOD FAITH AND MAKE HIS OR HER DECISION WITHIN 15
BUSINESS DAYS (OR WITHIN A TIME OTHERWISE AGREED BETWEEN THE PARTIES);
(VI)
GIVE HIS OR HER DETERMINATION IN WRITING (INCLUDING A
STATEMENT OF THE VALUE OF THE DETERMINATION) AND GIVE WRITTEN REASONS FOR THE
DETERMINATION.
(F)
THE EXPERT MAY, WITH PRIOR WRITTEN APPROVAL FROM BOTH THE
CONTRACTOR AND THE PRINCIPAL, COMMISSION HIS OR HER OWN ADVISERS OR CONSULTANTS,
INCLUDING LAWYERS, ACCOUNTANTS, BANKERS, ENGINEERS, SURVEYORS, TRANSPORT
CONSULTANTS, OR OTHER TECHNICAL CONSULTANTS, TO PROVIDE INFORMATION TO ASSIST
THE EXPERT IN HIS OR HER DECISION.
(G)
THE EXPERT MUST APPOINT ANY ADVISERS OR CONSULTANTS
NOMINATED IN WRITING BY BOTH THE PRINCIPAL AND THE CONTRACTOR TO PROVIDE
INFORMATION TO ASSIST THE EXPERT IN HIS OR HER DECISIONS.
(H)
THE PARTIES WILL INDEMNIFY THE EXPERT FOR THE COST OF
RETAINING THOSE ADVISERS OR CONSULTANTS.
(I)
THE CONTRACTOR MUST PROVIDE THE EXPERT WITH COPIES OF
MINUTES OF MEETINGS AND ALL REPORTS RELEVANT TO THE WORK WITHIN 5 BUSINESS DAYS
OF THEM BEING PREPARED, AND ALL OTHER INFORMATION REQUIRED TO KEEP THE EXPERT
INFORMED AND ABLE TO CARRY OUT HIS OR HER FUNCTION UNDER THIS CLAUSE.
(J)
THE PRINCIPAL MAY PROVIDE THE EXPERT WITH ANY RELEVANT
INFORMATION IT CONSIDERS NECESSARY TO KEEP THE EXPERT INFORMED AND ABLE TO CARRY
OUT HIS OR HER FUNCTION UNDER THIS CLAUSE.
(K)
A COPY OF ALL INFORMATION PROVIDED BY ONE PARTY UNDER CLAUSE
49.5(I) OR 49.5(J) MUST BE SENT TO THE OTHER PARTY.
(L)
THE DETERMINATION OF THE EXPERT WILL BE FINAL AND BINDING
ON EACH PARTY UNLESS:
(I)
THE VALUE OF THE DETERMINATION IS GREATER THAN $500,000;
AND
(II)
A PARTY GIVES NOTICE OF