Harris v Kaarimba Pty Ltd - [2018] VSC 724

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2016 001226

IN THE MATTER of KAARIMBA PTY LTD (ACN 164 173 942)

BETWEEN:

SANDRA GERALDINE HARRIS (in her capacity as trustee of the Wendouree Nominees Trust)	Plaintiff
and
KAARIMBA PTY LTD (ACN 164 173 942)	First Defendant
GERARD PAUL ALAMPI	Second Defendant

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JUDGE:	Sifris J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2018
DATE OF JUDGMENT:	23 November 2018
CASE MAY BE CITED AS:	Harris v Kaarimba Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 724

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PRACTICE AND PROCEDURE – Terms of settlement provide for the appointment of a special referee pursuant to Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 to assess the value of certain land, profits of a business and the value of units in unit trust – Separate experts appointed in relation to the land and the business.

PRACTICE AND PROCEDURE – Whether reports of special referees should be adopted in whole or in part – Proper approach – Reports adopted subject to minor variations – Wenco Industrial Pty Ltd v WW Industries Pty Ltd (2009) 25 VR 119 followed and applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Clarke QC with S Cipriano	Tasiopoulos Lambros & Co
For the Defendant	FD O’Loughlin with R Chan	Sofra Solicitors Pty Ltd

HIS HONOUR:

Introduction

This is a family dispute. The plaintiff, Sandra Geraldine Harris (Harris) and the second defendant, Gerard Paul Alampi (Alampi), are brother and sister. They are equal beneficiaries of the Wendouree Nominees Trust. Sandra is Trustee and Appointor of the Trust.

The first defendant, Kaarimba Pty Ltd (Kaarimba) is trustee of the Kaarimba Unit Trust. Kaarimba in its capacity as trustee of the Kaarimba Unit Trust owns the Kaarimba Orchard. Wendouree Nominees Trust effectively holds 500 units, being one-half of the units in the Kaarimba Unit Trust. Kaarimba in its capacity as trustee of the Kaarimba Trust owns the Kaarimba Orchard. The remaining 50 per cent interest in Kaarimba and the Kaarimba Unit Trust is held by interests associated with the Baquiri family.

In addition to its interest in the Kaarimba Orchard, Wendouree Nominees Trust holds interests in the Prima Group, comprising Prima Fresh Packers Pty Ltd, Prima Freshcorp Pty Ltd, and Prima Fresh Orchards and Coolstores Pty Ltd.

The original dispute between Harris and Alampi was resolved by Terms of Settlement entered into on 26 September 2017 (the Settlement Agreement).[1]
[1]The original dispute related to aspects of the Wendouree Nominees Trust and its assets.

This dispute, heard on 5 November 2018, relates to the Settlement Agreement and in particular whether the reports of two special referees should be adopted by the court, whether in whole or in part.

The Settlement Agreement

The Settlement Agreement includes the following terms:

1.Pursuant to Order 50 of the Supreme Court (General Civil Procedure) Rules 2015, an independent land valuer be appointed (by the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harris v Kaarimba Pty Ltd

Details

AGLC: Harris v Kaarimba Pty Ltd [2018] VSC 724
Case: [2018] VSC 724
Decision Date: 23 November 2018

CaseChat Overview and Summary

The parties involved in this case were Harris, the plaintiff, and Kaarimba Pty Ltd, the defendant. The dispute centered around the terms of a settlement agreement which included provisions for the appointment of a special referee under Order 50 of the Supreme Court (General Civil Procedure) Rules 2015. The referee was tasked with assessing the value of certain land, the profits of a business, and the value of units in a unit trust. Separate experts were appointed for the land and the business. The case was heard in the Supreme Court of Victoria.

The primary legal issue that the court needed to address was the proper approach to adopting the reports of special referees. Specifically, the court had to determine whether the reports should be adopted in their entirety, partially, or with modifications. The court considered the precedent set by Wenco Industrial Pty Ltd v WW Industries Pty Ltd, where it was held that reports could be adopted with minor variations if they were otherwise sound. This case provided the framework for the court’s analysis.

In reaching its decision, the court followed the precedent established in Wenco Industrial Pty Ltd v WW Industries Pty Ltd. The reports of the special referees were found to be generally sound, but required minor variations to address specific concerns raised by the parties. The court adopted the reports with these modifications, ensuring that the final valuation reflected an accurate and fair assessment of the disputed assets. This approach was deemed appropriate given the context and the nature of the expertise provided by the referees.

The final orders of the court were that the reports of the special referees would be adopted with the specified minor variations. This decision facilitated the enforcement of the settlement agreement and ensured that the parties could proceed with the agreed terms, while also addressing any legitimate concerns regarding the referees' assessments.

Orders