Ubertini v Saeco International Group SPA - [2013] VSC 468

IN THE SUPREME COURT
OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. S CI 2006 09429

GIORGIO MASSIMO UBERTINI and UBERTINI INVESTMENTS PTY LTD (ACN 099 388 566)	Plaintiffs
v
SAECO INTERNATIONAL GROUP SPA SOCIETA A SOCIO UNICO and SAECO AUSTRALIA PTY LTD (ACN 059 711 009)	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26, 27 AUGUST 2013
DATE OF RULING:	28 AUGUST 2013
CASE MAY BE CITED AS:	UBERTINI v SAECO INTERNATIONAL GROUP SPA
MEDIUM NEUTRAL CITATION:	[2013] VSC 468

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Practice and Procedure – Whether concession made by counsel as to future conduct of proceeding – Principles relating to withdrawal of concession – Whether plaintiffs have suffered relevant prejudice – Whether alleged concession amounted to acceptance of plaintiffs’ claim or offer in respect of plaintiffs’ claim – Whether court’s orders amounted to referral to special referee – Supreme Court (General Civil Procedure) Rules 2005, Order 50 – Whether court has jurisdiction to refer hypothetical question to special referee – Conduct of parties following alleged concession – Civil Procedure Act 2010 (Vic), ss 1(1)(c), 7.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr E N Magee QC with Mr T Mitchell and Mr T Dowling	Foster Nicholson Jones
For the 1^st Defendant	Mr P Solomon SC with Mr P Herzfeld	Allens Linklaters
For the 2^nd Defendant	No appearance

HIS HONOUR:

A. Introduction

This is an oppression case. The plaintiffs, Giorgio Massimo Ubertini (“Ubertini”) and Ubertini Investments Pty Ltd, allege oppressive conduct against the 1st defendant, Saeco International Group SpA Societa A Socio (“Saeco International”). Saeco International allege oppressive conduct by the plaintiffs.

The company in which each of them own shares is the 2nd defendant, Saeco Australia Pty Ltd (“Saeco Australia”). The plaintiffs together own 36% of the shares. Saeco International owns 60% of the shares.

As a result of a case management conference conducted as long ago as 25 October 2010, this matter was set down for trial.

At the start of this trial, which has been set down for hearing for 3½ weeks, the plaintiffs' senior counsel informed the court that there was a preliminary matter which needed to be raised.

In essence, he submitted the trial could not go ahead as ordered by the court, and agreed by the parties, because of a concession that was made by Saeco International on 10 November 2006. It was submitted that by reason of this concession, the only issue to be determined between the parties concerned the valuation of the plaintiffs' shares in Saeco Australia. Somewhat ironically, that was the only issue that was ordered not to be before the court at this trial.

No prior notice was given to the court of this preliminary issue. Saeco International was only made aware of the matter very recently.

B. The issue for determination

The plaintiffs identified the issue for determination as follows:

In 2006 [Saeco International] consented to the primary relief sought by the plaintiffs and the court made consent…

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: [2013] VSC 468
Decision Date: 28 AUGUST 2013

CaseChat Overview and Summary

In the case of Ubertini v Saeco International Group SPA, the parties were engaged in a legal dispute concerning various issues related to the future conduct of the proceedings. The matter was heard in the Supreme Court of Victoria. The primary legal issues revolved around the nature and implications of a concession allegedly made by one party's counsel, specifically whether such a concession could be withdrawn and the consequences of such a withdrawal on the proceedings. The court also had to determine if the plaintiffs had suffered any relevant prejudice as a result of this concession and whether the alleged concession amounted to an acceptance of the plaintiffs' claim or an offer in respect of that claim. Furthermore, the court examined whether the orders made by the court amounted to a referral to a special referee and assessed the jurisdiction of the court to refer hypothetical questions to a special referee.

The court's reasoning involved a detailed analysis of the relevant rules and statutes, including the Supreme Court (General Civil Procedure) Rules 2005, Order 50, and sections 1(1)(c) and 7 of the Civil Procedure Act 2010 (Vic). The court examined the principles concerning the withdrawal of concessions made by counsel and the circumstances under which such a concession could be considered binding. It also assessed whether the plaintiffs had indeed suffered prejudice and whether the alleged concession constituted an acceptance of the plaintiffs’ claim or an offer. The court further deliberated on the nature of the orders made, considering whether they were indeed a referral to a special referee. The court found that the orders did not amount to a referral and clarified the jurisdictional boundaries concerning the referral of hypothetical questions.

Ultimately, the court determined that the concession made by counsel was not binding and could be withdrawn. It found that the plaintiffs had not suffered any relevant prejudice as a result of the alleged concession, and it did not amount to an acceptance of the plaintiffs’ claim or an offer. The court also concluded that its orders did not constitute a referral to a special referee and affirmed its jurisdiction to address the hypothetical questions presented. The court's decision provided clarity on the conduct of the parties following the alleged concession and reinforced the principles governing the withdrawal of concessions in legal proceedings.

Orders