JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2023
DATE OF JUDGMENT:	17 May 2023 Ex tempore; written reasons published 17 May 2023
CASE MAY BE CITED AS:	Re Sparkling Beverages Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 258

---

PRACTICE AND PROCEDURE — Application for determination of a separate question — Whether trial of a separate question should be ordered — Alleged settlement agreement reached between the parties through confined communications between solicitors — General principles regarding applications for the trial of a separate question — Application granted — Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.04.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr G Rees (solicitor)	Baker McKenzie
For the Defendants	Mr T Gorton	Bastian Hancock Stynes

HIS HONOUR:

Introduction and summary

In this proceeding the plaintiffs seek a broad range of relief based upon alleged oppressive conduct of the first and second defendants in connection with business dealings and relevant shareholdings in the third and fourth defendants. Although commenced by originating process, the claims in the proceeding became the subject of a statement of claim. For present purposes the details of the allegations made in the claim and the defences raised in response need not be addressed.

The current issue before the court on the defendants’ application by summons is a narrow one. It is whether an order should be made pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) that there be a trial of the following separate question:

Whether the plaintiffs have released and discharged the defendants in respect of the claims made in the proceedings, which release is a complete defence to these proceedings, pursuant to the agreement pleaded at paragraphs 35A to 35D of the defendants’ amended defence.[1]

[1]See defendants’ written submission filed 27 March 2023 [1].

The terms of the proposed separate question were addressed and refined in exchanges with the Bench during the hearing, and the separate questions now proposed for determination are set out in the proposed orders at the end of these reasons (Separate Questions).

In the paragraphs of the amended defence referred to above, the defendants allege that a settlement agreement was reached between the parties on 8 December 2022 pursuant to which the plaintiffs released the defendants from each of the claims made in the proceeding (Release Agreement). The Release Agreement is said to be partly in writing and partly oral. It is said to arise from oral and written communications between the defendants’ solicitor and the then plaintiffs’ solicitor[2] in the lead up to the directions hearing held…

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 Re Sparkling Beverages Pty Ltd

Details

AGLC: Re Sparkling Beverages Pty Ltd [2023] VSC 258
Case: [2023] VSC 258
Decision Date: 17 May 2023 Ex tempore; written reasons published 17 May 2023

CaseChat Overview and Summary

The parties involved in this case are Sparkling Beverages Pty Ltd, the applicant, and the unnamed respondents. The dispute revolves around an application for the determination of a separate question in the context of a proceeding already before the court. The specific issue pertains to whether an alleged settlement agreement between the parties should be considered in the ongoing proceedings. The matter was heard in the Supreme Court of Victoria.

The court was tasked with deciding whether an application for the trial of a separate question should be granted. The separate question in question was whether a settlement agreement had been reached between the parties through communications between their solicitors. The application sought clarification on this point, as it could potentially impact the ongoing litigation. The court had to consider the general principles governing such applications, as outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 47.04.

In its reasoning, the court examined the nature and content of the communications between the solicitors to determine if they indeed constituted a settlement agreement. It considered the general principles governing applications for the trial of a separate question, which include the necessity of the separate question being determinable without resolving the main issues and whether the separate question could materially affect the outcome of the case. The court concluded that the separate question was determinable and that it could indeed materially affect the outcome. Consequently, the application was granted, and the court directed that the separate question be tried first.

The final orders of the court included the direction that the separate question regarding the alleged settlement agreement be tried before proceeding with the main issues in the litigation. This decision underscores the importance of carefully considering the scope and implications of communications between solicitors in the context of potential settlement agreements.

Orders