Raskin v Mediterranean Olives Estate Ltd - [2017] VSC 94

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2016 01239

REBECCA RASKIN	Plaintiff
v
MEDITERRANEAN OLIVES ESTATE LIMITED (ACN 091 024 396) & ORS	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2017
DATE OF JUDGMENT:	8 March 2017
CASE MAY BE CITED AS:	Raskin v Mediterranean Olives Estate Limited & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 94

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ALTERNATIVE DISPUTE RESOLUTION – Expert determination clause – Whether clause a submission to arbitration – Held: no submission –Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; In re Dawdy and Hartcup (1885) 15 QBD 426; In re Carus-Wilson and Greene’s Arbitration (1886) 18 QB 7 applied.

ALTERNATIVE DISPUTE RESOLUTION – Expert determination clause – clause uncertain and thus unenforceable – WTE Co-Generation & Anor v RCR Energy Pty Ltd & Anor [2013] VSC 314 discussed and explained.

ALTERNATIVE DISPUTE RESOLUTION – Expert determination clause – Application for stay of proceeding based on clause – Multiplicity of proceedings – Wide disputes involving questions of expert knowledge and mixed fact and law – No procedural instructions to expert – Stay refused – Zeke Services Pty Ltd v Traffıc Technologies Ltd [2005] 2 Qd R 563; Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332 [54] discussed and applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D F McAloon	Strongman & Crouch
For the Defendants	Mr O Bigos	Madgwicks Lawyers

TABLE OF CONTENTS

Introduction and issues..................................................................................................................... 1

Was there a submission to arbitration?.......................................................................................... 9

Is the expert determination clause void for uncertainty?......................................................... 13

Should the proceeding be stayed?................................................................................................ 17

HIS HONOUR:

Introduction and issues

The plaintiff, Rebecca Raskin, invested in the Mediterranean Olives Project (‘the project’) in each of the 2007 and 2008 financial years. The project is a registered managed investment scheme under the Corporations Law. The responsible entity is the first defendant, Mediterranean Olives Estate Limited (‘Mediterranean Olives’). The second defendant, Anthony May, is a director of Mediterranean Olives. He is also a solicitor. In his capacity as a director of Mediterranean Olives, he promoted the project to the plaintiff prior to her investment in it. Although a relevant witness in the proceeding, Mr May is acting as the solicitor for Mediterranean Olives and for himself, through the firm of Madgwicks of which he is a partner.

The proposed third defendant, Mediterranean Olives Land Pty Ltd (‘the project landowner’) owns the land on which the project is conducted. Mr May is also a director of the project landowner and, through his shareholding in Purus Nominees Pty Ltd, owns a beneficial interest in the project landowner. Purus Nominees owns 50 per cent of the shares in the project landowner.

The plaintiff’s allegation in the proceeding may be summarised as follows:

(1) While Mr May executed a series of documents relating to the 2007 scheme for the plaintiff (on the basis that he was her ‘Attorney under Power’),…

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.

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Details

Case: [2017] VSC 94
Decision Date: 8 March 2017

CaseChat Overview and Summary

The case of Raskin v Mediterranean Olives Estate Ltd involved a dispute between the plaintiff, Raskin, and the defendant, Mediterranean Olives Estate Ltd, regarding the interpretation and enforceability of an expert determination clause within a contract. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the clause in question constituted a submission to arbitration or merely an agreement to seek expert advice, and if it was enforceable given its uncertain terms.

The court examined the nature of the clause and its wording, considering whether it was intended to bind the parties to the expert’s determination. The court referenced several precedents, including Shoalhaven City Council v Firedam Civil Engineering Pty Ltd, In re Dawdy and Hartcup, and In re Carus-Wilson and Greene’s Arbitration, to ascertain the distinction between clauses that submit disputes to arbitration and those that merely call for expert advice. Furthermore, the court evaluated whether the clause was sufficiently certain to be enforceable, referencing WTE Co-Generation & Anor v RCR Energy Pty Ltd.

In reaching its decision, the court determined that the clause did not constitute a submission to arbitration, as it lacked the necessary certainty to be binding. The court found that the clause was uncertain, rendering it unenforceable. Additionally, the court refused the application for a stay of proceedings based on the clause, citing concerns about the multiplicity of proceedings and the complex nature of the disputes, which required expert knowledge and involved mixed questions of fact and law. The court referred to Zeke Services Pty Ltd v Traffic Technologies Ltd and Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd to support its decision.

The court ultimately decided that the expert determination clause was not enforceable and refused the application for a stay of proceedings. This decision highlights the importance of clarity in contractual clauses intended to involve expert determination and the court's reluctance to stay proceedings when doing so would lead to procedural complications and additional expert involvement.

Orders