Broadcasting and related industry contracts - plaintiff owner and operator of broadcast infrastructure - defendant has access to and use of plaintiff's infrastructure pursuant to contract - defendant exercises option to renew contract - contract provides for expert determination of licence fee if parties fail to reach agreement - expert charged with determining a reasonable fee having regard to rates charged to third parties at facility in question - term sheet determines that expert determination final and binding except if attended by manifest error or error of law - terms of contract direct task to be performed by expert and whether determination binding.
Plaintiff alleges error of law on basis expert misconceived function by adopting objective “market value” assessment to ascertain fee as opposed to a subjective “fair value” approach - function of expert determined by contractual provisions - contract provides for hybrid process requiring consideration of subjective and objective factors, with rates charged to third parties a mandatory consideration - contract requires appraisal akin to 'fair market value' - expert does not have regard to exclusively objective considerations and considers position of particular parties - expert did not misconceive function.
Plaintiff alleges error of law on basis expert failed to consider relevant factor - relevant consideration said to be 'special value' of contract to defendant - requirement for ascertainment of 'reasonable fee' refers to defendant as a willing but not anxious and involuntary purchaser - requirement for 'reasonable fee' antithetical to valuation proceeding on basis plaintiff a monopolist - expert did consider special value of contract to defendant.
Plaintiff alleges error of law on basis expert failed to give weight to current fees under original contract - expert had regard to such fees but concluded of limited relevance - not an error of law to weigh relevant factors in a particular way as opposed to not consider them - circumstances prevailing ten years previously when agreement first made materially different to present - fees agreed ten years previously not useful guide to what constitutes a 'reasonable fee'.
Plaintiff alleges error of law and manifest error on basis expert used incorrect comparator in assessing 'reasonable fee' - expert said to have incorrectly compared digital audio broadcasting with digital television broadcasting - audio broadcasting said to be inapposite comparator due to fact radio different medium to television with different cost factors - digital audio broadcasting fees considered by expert pertain to agreement between same parties and are relatively recent - errors in methodology employed by expert valuer not errors of law - matter of professional judgment as to weight to accord cost recovery and profit margin - expert evidence adduced in attempt to illustrate manifest error - fact such evidence needs to be adduced conveys error not manifest - expert did not make error of law or manifest error.
Plaintiff alleges expert failed to give detailed reasons - question whether reasons are 'reasons' within the meaning of the contract - failure to provide 'detailed reasons' entails there will not be a binding determination - due to requirement of 'detailed statement of reasons', provision of wider than usual scope to challenge binding nature of determination and fact issues are complex standard of reasons required by contract akin to that expected of judges and commercial arbitrators - expert sufficiently identifies methodology and provides sufficiently detailed and comprehensive reasons - reasons are 'detailed reasons' within meaning of contract.
Plaintiff alleges error of law on basis determination manifestly unreasonable - determination said to be unreasonable in Wednesbury sense because of relative magnitude of reduction in licence fee - contract requires new fee to be determined with predominate regard to market based considerations and cost considerations not prevailing when original fee determined - determination not so unreasonably low - determination rewards plaintiff above avoidable cost - arguable that perpetuating current fee would be unreasonable - determination not manifestly unreasonable