Betterway Health Care International Group Pty Ltd v Ferngrove Pharmaceuticals Pty Ltd
[2021] SADC 63
•1 June 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BETTERWAY HEALTH CARE INTERNATIONAL GROUP PTY LTD v FERNGROVE PHARMACEUTICALS PTY LTD
[2021] SADC 63
Judgment of his Honour Judge Durrant
1 June 2021
CORPORATIONS - EXECUTION OF DOCUMENTS - BY COMPANY - WHETHER AGREEMENT EXPRESSED TO BE EXECUTED AS A DEED - WHETHER AN EFFECTUAL DEED
The applicant exporter of infant formula and the respondent manufacturer of infant formula purported to execute a Deed and a Supply Agreement. The Deed required the respondent to do all things necessary to obtain required accreditation and registration from the Chinese Government. The applicant agreed to provide the respondent with details of formulations intended for manufacture. The applicant has alleged the respondent failed to do all things necessary to obtain registration. The respondent pleads as a complete answer to the claim that the Deed is not binding on the parties because it was not validly executed as a deed.
Several questions for determination have been agreed to assist the parties to resolve these proceedings.
Held:
1. The Deed has not been validly executed as a deed at common law.
2. The Deed has been validly executed pursuant to s 127(3) of the Corporations Act 2001, and is binding on the parties.
3. Alternatively, the Deed has been defectively executed under the Law of Property Act 1936, and must be taken to be valid pursuant to s 41(4) of the Act.
4. In the further alternative, the Deed is a simple contract supported by valid consideration.
Corporations Act 2001 (Cth) s 127(3); Law of Property Act 1936 (SA) s 41; Civil Law (Property) Act 2006 (ACT) s 219; Conveyancing Act 1919 (NSW) s 38; Law of Property Act (NT) Pt 6 Div 1; Property Law Act 1974 (Qld) Pt 6; Conveyancing and Law of Property Act 1884 (Tas) s 63; Property Law Act 1958 (Vic) ss 73, 73A; Property Law Act 1969 (WA) ss 9, 12, referred to.
Sheahan v Verco (1999) 203 LSJS 109; Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124 [132]; Bendigo and Adelaide Bank Ltd & Anor v DY Logistics Pty Ltd & Ors [2018] VSC 558; Pozzan v Gibbons (2006) 200 FLR 287; Burkett v Bendigo and Adelaide Bank Ltd (2) 2018 VSC 723; Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSW SC 379; 400 George Street (Qld) Pty Ltd v GB International Ltd [2012] 2 Qd R 302; Meredith Projects Pty Ltd v Fletcher Construction Australia Ltd [2000] NSWSC 493; Comptroller of Stamps v Associated Broadcasting Services Ltd [1990] VR 335; Republica Democratica de Timor Leste v Lighthouse Corporation Limited [2019] VSCA 290; Trina Solar (US) Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6, considered.
BETTERWAY HEALTH CARE INTERNATIONAL GROUP PTY LTD v FERNGROVE PHARMACEUTICALS PTY LTD
[2021] SADC 63
Summary
In 2016, the respondent, Ferngrove Pharmaceuticals Pty Ltd (Ferngrove), entered discussions with Betterway Health International Group Pty Ltd (Betterway) to manufacture and supply infant formula for export to China.
The parties executed a Deed and a Supply Agreement. In the Deed, Ferngrove agreed to do all things necessary to obtain accreditation and registration from the Chinese Government.[1] Betterway agreed, to enable accreditation and registration, to provide Ferngrove full details of its infant formulations.[2]
[1] Book of Documents [5]; Clauses 2.1, 2.2 and 2.3; Statement of Claim (SOC) dated 11 October 2019, (FDN1), [8].
[2] Book of Documents [5]; Clauses 2.4; SOC (FDN1), [8].
Betterway allege Ferngrove breached the Deed when it failed to do all things necessary to obtain registration.[3] Ferngrove plead, amongst other things but as a complete answer to the whole of the claim made, that the parties are not bound by the Deed because it had not been validly executed.[4]
[3] SOC (FDN1), [13].
[4] SOC (FDN1), [6], [7]; Second Defence dated 30 January 2020, (FDN6), [6], [7]; Reply by Applicant to Defence of Respondent (FDN16), [6], [7].
The parties consider that the determination of five preliminary questions, on an agreed factual basis, [5] will go some way to resolving these proceedings. Given the state of the pleadings, I have answered questions 1 to 4:[6]
[5] Agreed Statement of Facts filed 4 December 2020 (SOF); Agreed Supplementary Statement of Facts filed 8 December 2020 (SSOF); Book of Documents filed 4 December 2020; Supplementary Book of Documents filed 9 December 2020.
[6] Sheahan v Verco (1999) 203 LSJS 109; Uniform Civil Rules 2020, r 151.1(2).
1.Is the document entitled Deed sued on by the applicant binding on the parties as a validly executed deed of common law?
2.Is the document binding on the parties as a validly executed deed pursuant to s 127(3) of the Corporations Act 2001 (Cth)?
3.Does the Law of Property Act 1936 (SA) apply to the document, and if so;
3.1Is the document binding on the parties as a validly executed deed pursuant to s 44(1) or s 44(5) of the Law of Property Act 1936 (SA)?
3.2Is the document a deed which has been defectively executed within the meaning of s 41(4) the Law of Property Act 1936 (SA) and if so,
3.3Must the defective execution be taken to be valid pursuant to s 41(4) the Law of Property Act 1936 (SA)?
4.Is the document binding on the parties as a simple contract supported by valuable consideration?
Given my answers to those questions, I have not answered question 5:
5.Does the applicant’s case give rise to a reasonably arguable cause of action in estoppel?
My reasons follow.
Agreed Facts and Documents
Agreed Facts
1. At all material times, the Applicant:
a) was a corporation duly incorporated pursuant to the Corporations Act 2001 (Cth);
b) was capable of suing;
c) was a developer, exporter, distributor and supplier of infant and young children milk formulations (infant formula) to the People’s Republic of China (PRC);
d) had developed the following range of infant formula specifically for the export, distribution and supply by the Applicant to the PRC:
i) Betterway Infant Formula for infants of ages 0 – 6 months (Step 1 Formula);
ii) Betterway Follow-On Formula for infants of ages 6 – 12 months (Step 2 Formula);
iii) Betterway Toddler Formula for infants of ages 12 – 36 months (Step 3 Formula);
(Step 1 Formula, Step 2 Formula and Step 3 Formula are collectively referred to herein as the Formulations);
e) had Mr Robert Anthony Balfour (Balfour) duly appointed as its sole director and secretary.
2.At all material times, the Respondent:
a) was a corporation duly incorporated pursuant to the Corporations Act 2001 (Cth);
b) was capable of being sued;
c) had been the registered proprietor of the premises at 5 Fengrove Place, Granville in the state of New South Wales, 2142 (the Premises);
d) was a Therapeutic Goods Administration licensed contract manufacturing facility, specialising in complementary medicines and health food products, all manufactured under strict Good Manufacturing Practice from the Premises;
e) had had Mr William Wei Tang (also known as William Tang) (Tang) duly appointed as its sole director and secretary;
f) had employed Ms Yavanna Jiang (Jiang);
g) had employed Ms Veronica Yang (Yang);
h) had employed Mr Pradeep Jobantura (Jobantura) as a quality control officer.
3.In order to import and sell infant formula in the PRC overseas producers of infant formula are required to obtain the following regulatory approvals and registrations:
a) accreditation of their manufacturing facility with the General Administration of Customs of the People’s Republic of China (formerly the Certification and Accreditation Administration of the PRC) (the CNCA) (Accreditation) which Accreditation results in the producer being allocated 3 brand slots with 3 infant formula for each brand that the producer may produce at its facility;
b) registration by the China Food and Drug Administration (CFDA) of the specific formulations and ingredients of each infant formula produced pursuant to the producer’s allocated brand slots at their facility (Registration), which Registration requires the producer to comply with the following regulations:
i)‘Regulation for Inspection, Quarantine and Supervision of Dairy Products Import/Export’ (Decree No. 152, Administration of Quality Supervision, Inspection and Quarantine (AQSIQ));
ii)‘Regulations for Registration and Management of Overseas Food Producer Exporting Products to China’ (Decree No. 145, AQSIQ); and
iii)‘Public Notice on List of Overseas Food Producers Exporting Products to China to be Registered’ by AQSIQ” (Decree No. 62, 2013, AQSIQ).
(the Accreditation and the Registration are collectively referred to herein as the Regulations).
4.The requirement for Registration was introduced by the PRC on 6 June 2016 with it becoming effective from 1 January 2018 pursuant to the Food and Drug Administration: Administrative Measures for the Registration of Infant and Young Children Milk Powder Formula Receipts (Decree No 26, 2016, of the CFDA).
Execution of the Deed and the Supply Agreement
5.On 11 October 2016, Balfour on behalf of the Applicant sent an email to Tang of the Respondent with an amended version of a document entitled ‘Nutritional Powders and Supply Agreement’ between the Applicant and the Respondent attached to the email (the Supply Agreement).[7] Balfour referred to the document as ‘the contract’ in the email.
[7] Book of Documents, [6].
6.On 20 October 2016, Yang on behalf of the Respondent sent an email to Balfour of the Applicant in response to the email of 11 October 2016 proposing a further amendment to the Supply Agreement.[8]
[8] Book of Documents, [7].
7.On 20 October 2016, Balfour of the Applicant sent an email to Yang of the Respondent with a final version of the Supply Agreement and a further document entitled ‘Deed’ between the Applicant and the Respondent (the Deed) attached to the email for signing by the Respondent.[9] Balfour referred to the documents as ‘DEED’ and ‘SUPPLY AGREEMENT’ in the email.
[9] Book of Documents, [7].
8.On 24 October 2016, Balfour of the Applicant sent a further email to Yang of the Respondent seeking an update as to when the ‘Deed’ and ‘Supply Agreement’ would be signed and returned to the Applicant.[10] Balfour referred to the documents as ‘DEED’ and ‘Supply agreement’ in the email.
[10] Book of Documents, [10].
9.On or around 28 October 2016, Tang on behalf of the Respondent executed the Deed and the Supply Agreement.
10.On 28 October 2016, Yang on behalf of the Respondent sent an email to the Applicant advising that the Supply Agreement and the ‘Deed’ had been sent to the Applicant by express post.[11] Yang referred to the documents as ‘Deed’ and ‘signed agreement’ in the email.
[11] Book of Documents, [10].
11.On or around 1 November 2016, Balfour on behalf of the Applicant executed the ‘Deed’ and the Supply Agreement by signing the ‘Deed’ and affixing the common seal of the Applicant.[12]
[12] Book of Documents, [1]-[2].
Terms of the Deed and Supply Agreement
12.The ‘Deed’ contained, inter alia, the following express written terms:
a. the Respondent would within 30 business days from the commencement date being 1 October 2016 or within such time as extended by the Applicant up to a maximum of 24 months from the commencement date, do all things necessary to apply for and obtain Accreditation of the Premises to enable the Formulations to be manufactured on the Premises (Clause 2.1 of the Deed) (the Accreditation Obligation);
b. on the Accreditation of the Premises, the Respondent would apply for and obtain Registration of the Formulations as soon as possible (Clause 2.2 of the Deed) (the Registration Obligation);
c. the Respondent acknowledged that under the Regulations the Respondent could only apply for Registration in the manner described at paragraph 3 (a) herein and the Respondent covenanted and agreed that the Formulations would be included in the product formulae for which the Respondent sought Registration (Clause 2.3 of the Deed) (the Brand Slot Obligation);
d. the Applicant would provide full details and specifications of samples for the Formulations to enable the Respondent to make the applications for Accreditation of the Premises and Registration of the Formulations (Clause 2.4 of the Deed);
e. from the date of Accreditation of the Premises and Registration of the Formulations the Respondent would manufacture and supply the Formulations to the Applicant on the terms and conditions set out in the Supply Agreement (Clause 3 of the Deed) (the Supply Obligation);
f. the Deed could only be amended in writing signed by the Applicant and the Respondent (Clause 6 of the Deed);
g. the Applicant or the Respondent could only waive a breach of the Deed in writing signed by that party or its authorised representative (Clause 7 of the Deed);
h. the Deed recorded the entire agreement between the Applicant and the Respondent about its subject matter (Clause 9.1 of the Deed);
i. the Deed was governed and is to be construed in accordance with the laws in force in the state of South Australia and the parties irrevocably submitted to the exclusive jurisdiction of the courts of South Australia (Clause 12 of the Deed).
13.The Supply Agreement contained, inter alia, the following express written terms:
a. the Respondent agreed to supply the Formulations to the Applicant on the terms and conditions set out in the Supply Agreement (Clause 2.1 of the Supply Agreement);
b. the term of the Supply Agreement was to be 3 years from the date the Respondent obtained Registration of the Formulations with an automatic right of renewal subject to Clause 9.2 of the Supply Agreement (Clause 1.1 of the Supply Agreement) (the Term);
c. the Respondent agreed to supply the Formulations to the Applicant and the Applicant agreed to pay the Respondent for the Formulations in accordance with the purchase price as set out in Item 1 of the Schedule to the Supply Agreement (Clause 6.1.1) (the Price).
Conduct in respect of the Deed
14.On 15 August 2016, the Applicant provided details of the Formulations to the Respondent by email.[13]
[13] Book of Documents, [3].
15.In or around September 2016, the Applicant liaised with the Respondent by email with respect to shipping to the Respondent 360 cans of the Formulations which cans were subsequently shipped on or around 14 September 2016.[14]
[14] Book of Documents, [4].
16.On 30 September 2016, Balfour of the Applicant sent an email to Tang of the Respondent and sought an update on the CNCA process under the Deed.[15]
[15] Book of Documents, [5].
17.On 5 October 2016, Tang of the Respondent wrote to Jiang and Jobantura of the Respondent and Balfour of the Applicant in respect of Balfour’s email dated 30 September 2016.[16]
[16] Book of Documents, [5].
18.On 19 October 2016, Balfour of the Applicant wrote to Jiang of the Respondent and sought an update on when the sample cans would be filled for CNCA testing.[17]
[17] Book of Documents, [8].
19.On 19 October 2016, Jiang on behalf of the Respondent sent an email to Balfour of the Applicant advising him that the Respondent would try and fill the cans in the next 2 weeks.[18]
[18] Book of Documents, [8].
20.On 28 October 2016, Balfour on behalf of the Applicant sent an email to Jiang of the Respondent containing the finished product specifications.[19]
[19] Book of Documents, [9].
21.On 28 October 2016, Jiang on behalf of the Respondent sent an email to Balfour of the Applicant advising him that the signed Deed and Supply Agreement has been posted to the Applicant by express post.[20]
[20] Book of Documents, [10].
22.On 10 November 2016, Balfour on behalf of the Applicant sent an email to Jiang of the Respondent seeking an update in respect of testing of the formulations.[21]
[21] Book of Documents, [11].
23.On 11 November 2016, Jiang on behalf of the Respondent sent an email to Balfour of the Applicant responding to Balfour’s email dated 10 November 2016.[22]
[22] Book of Documents, [11].
24.On 17 November 2016, Balfour on behalf of the Applicant sent an email to Jiang of the Respondent with respect to testing.[23]
[23] Book of Documents, [12].
25.On 29 November 2016, the Applicant sent an email to Jiang of the Respondent containing documents with respect to IMF registration issued by CFDA that were requested by the Respondent under the Deed.[24]
[24] Book of Documents, [13].
26.On 5 December 2016, Balfour on behalf of the Applicant sought a further update from Jiang of the Respondent by email.[25]
[25] Book of Documents, [14].
27.On 9 December 2016, Jiang on behalf of the Respondent sent an email to Balfour of the Applicant responding to Balfour’s email dated 5 December 2016.[26]
[26] Book of Documents, [14].
28.On 9 December 2016, Balfour on behalf of the Applicant sought a further update from Jiang of the Respondent by email.[27]
[27] Book of Documents, [14].
29.On 14 December 2016, Balfour on behalf of the Applicant sought a further update from Jiang of the Respondent by email.[28]
[28] Book of Documents, [14].
30.On 10 January 2017, Jiang of the Respondent sent an email to Balfour of the Applicant responding to Balfour’s email dated 9 December 2016.[29]
[29] Book of Documents, [16].
31.Between December 2016 and September 2017, Balfour on behalf of the Applicant regularly liaised by telephone with Jobanputra and with Jiang of the Respondent, both of whom advised the Applicant:
a. that the process for the Respondent to obtain Accreditation was ongoing;
b. that the Department of Agriculture, Fisheries and Forestry Australia were attending the Premises to undertake an inspection and would then provide a report for provision to the CNCA;
The Representations
32.These telephone conversations occurred on at least the following dates 8 December 2016 (Jiang), 23 March 2017 (Jiang), 31 May 2017 (Jiang), 31 May 2017 (Jobantura), 6 June 2017 (Jiang), 6 June 2017 (Jobantura), 13 June 2017 (Tang), 21 August 2017 (Jobantura), 4 September 2017 (Jobantura), 15 September 2017 x 4 (Tang).[30]
[30] Book of Documents, [20].
33.On 7 August 2017, Balfour on behalf of the Applicant sent a text message to Jobantura of the Respondent seeking an update on the CNCA process under the Deed. Jobantura responded to Balfour of the Applicant on the same date advising him ‘not yet, please follow up in the 1st week of September’.[31]
[31] Book of Documents, [17].
34.On 8 September 2017, Balfour on behalf of the Applicant sought a further update from Jiang of the Respondent by way of email and advised her that the Applicant had a standing order ready for production for the first 12 months of the Supply Agreement for 800,000 cans.[32]
[32] Book of Documents, [18].
35.On 10 October 2017, the then Chief Executive Officer of the Respondent, Mr Russell Scott sent an email to Balfour of the Applicant and advised him, inter alia, that the Respondent considered that the Deed and Supply Agreement had been abandoned.[33]
[33] Book of Documents, [19].
36.On 10 October 2017, Balfour of the Applicant advised Mr Scott of the Respondent by email that he had regularly followed up with Mr Jobanputra of the Respondent and that the Applicant had complied with all of its obligations under the Deed.[34]
[34] Book of Documents, [18].
Promissory Estoppel
37.The Applicant adopted an assumption as to the terms of the legal relationship between the parties from at least the time of execution of the Deed namely that the Respondent would comply with its obligations under the Deed and the Supply Agreement including but not limited to the Registration Obligation, the Supply Obligation and the Brand Slot Obligation such that the Respondent would obtain registration of the Formulations and the Applicant would be able to purchase from the Respondent the Formulations under the Supply Agreement at the Price for the Term for subsequent sale by the Applicant to the PRC (the Assumption).
38.The Respondent induced, encouraged and/or acquiesced in the Applicant’s adoption of the Assumption until at least 10 October 2017 by reason of the Representations and otherwise by reason of the Respondent’s continued silence following the occurrence of each of the matters at 14 to 36 herein despite being aware through its receipt of emails and its ongoing discussions with representatives of the Applicant that the Applicant had adopted the Assumption.
39.The Applicant acted in reliance on the Assumption by failing to enter into or take any steps to negotiate with a third party manufacturer for similar arrangements and terms as those contained in the Deed and the Supply Agreement so that the Applicant could obtain registration of the Formulations.
40.The Applicant will suffer detriment if the assumption is not fulfilled and the Respondent is entitled to rely upon there being no valid Deed or Contract to regulate the relationship between the parties.
41.The Applicant has not been able to enter into a similar arrangement with a third party manufacture for the purpose of the Applicant obtaining registration of the Formulations.
42.The parties accept the facts as to loss and damage suffered by the Applicant particularised at paragraph 14 of the Claim.
Conventional Estoppel
43.In the alternative, both parties adopted the Assumption as to the terms of the legal relationship and conducted the relationship on the basis of the Assumption from at least the time of execution of the Deed until 10 October 2017.
44.Each party knew or intended that the other would act on that basis and departure from the Assumption will occasion detriment to the Applicant as set out at paragraphs 39 to 41 herein.
Supplementary Agreed Facts
Background Matters
1.On 2 August 2016, Balfour on behalf of the Applicant met with Greg Arthur of Mellor Olsson Lawyers at their Adelaide office. Balfour instructed Mellor Olsson to prepare a Deed and Supply Agreement with the Respondent.
2.On 10 August 2016, Mr Johnson Yang of the Applicant sent an email to Balfour on behalf of the Applicant[35] in respect of the draft of the Deed.
[35] Supplementary Book of Documents, [1].
3.On 10 August 2016, Balfour on behalf of the Applicant sent an email to Mr Arthur of Mellor Olsson[36] wherein he refers to a Deed.
[36] Supplementary Book of Documents, [1].
4.On 16 August 2016, Mr Arthur of Mellor Olsson sent an email to Balfour on behalf of the Applicant[37] which referred to the ‘amended Deed’ and ‘draft Supply Agreement’.
[37] Supplementary Book of Documents, [1].
5.On 5 September 2016, Mr Peter Bosco of Mellor Olsson sent an email to Balfour of the Applicant, which stated ‘the Supply Agreement should be annexed to the Deed’.
6.On 17 September 2017, Balfour on behalf of the Applicant sent to the then Chief Executive Officer of the Respondent Mr Russell Scott an email containing the Deed and Supply Agreement.
7.On 18 September 2017, Mr Scott on behalf of the Respondent sent an email to Balfour commenting on the documents.
8. On 8 March 2018, Balfour of the Applicant sent an email to Mr Scott of the Respondent that the Applicant had become aware the Respondent had obtained registration.
9. On 8 March 2018, Mr Scott on behalf of the Respondent sent an email to Balfour which replied to Mr Balfour’s email earlier that day.
10. On 11 March 2018, Balfour on behalf of the Applicant sent an email responding to Mr Scott’s email earlier that day.
11. On 12 March 2018, Mr Scott on behalf of the Respondent sent an email to Balfour of the Applicant.
12. On 13 March 2018, Balfour on behalf of the Applicant sent an email to Scott.
13. On 25 May 2018, Balfour on behalf of the Applicant sent an email to Mr Arthur of Mellor Olsson.
Relevant Legislative Provisions
Corporations Act 2001, s 127
Execution of documents (including deeds) by the company itself
(1)a company may execute a document without using a common seal if the document is signed by:
(a) 2 directors of the company; or
(b) a director and a company secretary of the company; or
(c) for a proprietary company that has a sole director who is also the sole company secretary--that director.
Note: If a company executes a document in this way, people will be able to rely on the assumptions in ss 129(5) for dealings in relation to the company.
(2)a company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:
(a) 2 directors of the company; or
(b) a director and a company secretary of the company; or
(c) for a proprietary company that has a sole director who is also the sole company secretary--that director.
Note: If a company executes a document in this way, people will be able to rely on the assumptions in ss 129(6) for dealings in relation to the company.
(3)A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with ss (1) or (2).
(4)This section does not limit the ways in which a company may execute a document (including a deed).
Law of Property Act 1936, s 41
Execution and attestation of deeds
(1)The following rules govern the execution of a deed:
(a) a natural person executes a deed by signing, or making a mark, on the Deed;
(b) a body corporate executes a deed by affixation of the common seal of the body corporate to the Deed in accordance with the rules governing the use of the common seal;
(c) a deed may be executed on behalf of a party to a deed—
(i) by an attorney acting in pursuance of an authority conferred by deed; or
(ii) where a party is a natural person—by a person acting at the direction, and in the presence, of the party.
(2)The execution of a deed must be attested—
(a) where the deed is executed by a natural person—by at least one witness who is not a party to the deed;
(b) where the deed is executed by a person acting at the direction, and in the presence, of the party—by a person who is authorised by law to take affidavits.
(3)Delivery and indenting are not necessary in any case.
(4)Notwithstanding the defective execution of a deed by or on behalf of a party to the deed, the execution will be taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.
(5) Notwithstanding any other law, an instrument executed in accordance with this section is a deed if—
(a) the instrument is expressed to be an indenture or deed; or
(b) the instrument is expressed to be sealed and delivered or, in the case of an instrument executed by a natural person, to be sealed; or
(c) it appears from the circumstances of execution of the instrument or from the nature of the instrument that the parties intended it to be a deed.
Is the document entitled ‘Deed’ sued on by the applicant binding on the parties as a validly executed deed of common law?
The parties premised their submissions, in respect of each of the questions, on an assumption the Deed had not been validly executed, as a deed, at common law. That assumption arises because only the common seal of one party, Betterway, rather than both, had been properly affixed and witnessed.[38]
[38] Book of Documents, [2-10].
The assumption is based on the agreed facts which establish that on 28 October 2016, the sole director of Ferngrove, Mr Tang, executed the Deed and the Supply Agreement by signing,[39] and on 1 November 2016, Betterway executed the Deed and the Supply Agreement by affixation of its common seal, witnessed by a director.[40]
[39] SOF, [2(d)], [9].
[40] SOF, [11]; Book of Documents [1]– [2].
The assumption is sound. Four things are necessary to identify a deed at common law.[41] First, it must be in writing.[42] Second, it must be sealed by the party or the parties executing it.[43] Third, it must be delivered (and is not enforceable until that has occurred) and, last, the parties must have intended the instrument to take effect as a deed.[44]
[41] Seddon on Deeds, Nicholas Seddon, 2015, (The Federation Press), [1.3], [2.5].
[42] On paper, parchment or vellum (being fine parchment made originally from the skin of a calf).
[43] Morrison, RJA and Goolden, JH (eds), Norton A Treatise on Deeds (2nd edn 1928), Sweet & Maxwell, 3; Seddon on Deeds, [1.3].
[44] Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124 [132]; Halsbury’s Laws of Australia [140-58]; Delivery will occur if there are acts or words sufficient to show that the party making the Deed intends the Deed to be presently bound; Seddon on Deeds, [2.5]; Bendigo and Adelaide Bank Ltd & Anor v DY Logistics Pty Ltd & Ors [2018] VSC 558 [24]; Pozzan v Gibbons (2006) 200 FLR 287; 400 George Street (Qld) Pty Ltd v BG International Ltd, [2012] Qd R 302.
In this case, only Betterway sealed the Deed; Ferngrove did not. Therefore, the second requirement to identify a deed at common law is absent. I confirm the assumption of the parties and find the Deed has not been validly executed as a deed at common law and is not binding on the parties as such. It is therefore necessary for me to answer the next question.
Is the document binding on the parties as a validly executed deed pursuant to s 127(3) of the Corporations Act 2001?
Section 127(3) of the Corporations Act 2001, allows a document to take effect as a deed, without the necessity for affixation of the common seal, where the document is expressed to be executed as a deed.
Ferngrove submits that the Deed, to be capable of valid execution, must bear the words ‘executed as a deed’. It says it is not enough for the document to call itself a deed and the execution provision in the instrument must contain an unambiguous statement of intent that it is a deed.[45] Ferngrove says the Deed contains no such unambiguous statement and instead, refers to being ‘Signed as an Agreement’. An endorsement in those terms, it submits, is consistent with the practice of the legal profession whereby, ‘Signed as an Agreement’, is used in contra-distinction to ‘Executed as a Deed’. Therefore, the words ‘Signed as an Agreement’, submits Ferngrove, indicate the intention that the document should take effect, not as a deed, but as a simple contract. Accordingly, submits Ferngrove, the document is not expressed to be executed as a deed, as required by s 127(3), and it could not have been and has not been validly executed as a deed pursuant to s 127 of the Corporations Act 2001.
[45] Gibbons v Pozzan [2007]; (2007) 209 FLR 233.
Alternatively, Ferngrove says, the execution blocks in the Deed and the Supply Agreement have been drafted in an identical manner; with both a witnessing provision ‘in the presence of’ and, the traditional form for affixation of a seal. That demonstrates, it submits, that the Deed had been drafted to be executed under s 127(2) and not s 127(1). Consequently, Ferngrove contends, Mr Tang could not have signed the document within the meaning of s 127(1); he could only have purported to sign it as a witness to the affixation of the seal under s 127(2). As no seal had been affixed, Ferngrove submits, execution had been ineffective. It would be impermissible in those circumstances, says Ferngrove, to find that the witnessing of the document by Mr Tang under s 127(2) constituted a signing of the Deed under s 127(1).
In the further alternative, Ferngrove submits that, even if there had been a signing under s 127(1), the expression in the signature block does not, of itself, assist in determining whether the document had been intended to be executed as a deed. In that respect, it relies on both documents; the Deed and the Supply Agreement. It says that, as both those documents had been drafted to be sealed, they could not have been contra-distinct and there could not have been a common contemplation by the parties that they had to be executed under seal.
Counsel for Ferngrove, Mr Manetta, acknowledges that in Gibbons v Pozzan,[46] the Full Court considered this question. In that case, the execution block of a deed of loan had been expressed to be signed by the sole director of the company. Mr Manetta submits that Gibbons does not assist me to determine this question and is distinguishable on two bases. First, he says, in Gibbons s 127(1) had clearly been complied with; whereas in this case neither s 127(1) nor s 127(2) has been complied with. Second, he submits, there had been no statement in the deed in Gibbons as to its manner of execution; while in this case there has been an express and contradictory statement ‘Signed as an Agreement’. Further, Mr Manetta submits, the ‘real ratio’ of Gibbons is the alternative position propounded by the Court; that any defect in execution had been curable under s 41(4) of the Law of Property Act 1936.[47]
[46] Gibbons v Pozzan [2007]; (2007) 209 FLR 233
[47] Gibbons supra, [42] & [54]; T21.28-T22.7.
Betterway submits the parties intended the Deed to take effect as a deed. In urging me to reach that conclusion, Mr Guthrie, of counsel, refers to the factors which I can consider, at common law, to determine whether an instrument had been intended to take effect as a deed:[48]
·whether the instrument itself contains a description as a deed or a mere agreement;[49]
·whether the purpose or object of the instrument could be aided or only fulfilled by way of deed;[50]
·whether the instrument reflects the phraseology and structure commonly found in deeds; and,
·any sharp contrast between the description of two instruments, negotiated between the same parties at the same time, and any purposeful distinction made in those instruments.[51]
[48] Betterway submits that, whilst those factors remain of assistance, legislative changes created to expand the method of execution of deeds mean, in any event, that the rigid formalities and rules of the past, are no longer of great significance; see the non-uniform approach of the Commonwealth and each State and Territory in the Corporations Act, 2001, s 127; Law of Property Act, 1936, s 41; Civil Law (Property) Act 2006 (ACT), s 219; Conveyancing Act 1919 (NSW), s 38; Law of Property Act (NT), Pt 6 Div 1; Property Law Act 1974 (Qld), Pt 6; Conveyancing and Law of Property Act 1884 (Tas), s 63; Property Law Act 1958 (Vic) ss 73, 73A; Property Law Act 1969 (WA), ss 9, 12; Gibbons, [30], Burkett v Bendigo and Adelaide Bank Ltd (2) 2018 VSC 723, [83]; Seddon on Deeds, [70]; Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSW SC 379, [57].
[49] 400 George Street (QLD) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 [10], Meredith Projects Pty Ltd v Fletcher Construction Australia Ltd [2000] NSWSC 493 [132].
[50] Meredith Projects Pty Ltd v Fletcher Construction Australia Ltd [2000] NSWSC 175.
[51] Comptroller of Stamps v Associated Broadcasting Services Ltd [1990] VR 335, [347] as referred to in 400 George Street (QLD) Pty Ltd, [17].
Betterway submits that the words, ‘expressed to be executed as a deed’, in s 127(3), must be construed in accordance with Gibbons v Pozzan.[52] On that basis, Betterway submits the Deed had been valid and binding on the parties. That is because Betterway had executed it in accordance with s 127(2)(c), Ferngrove had executed in accordance with s 127(1)(c) and, the document had been expressed to be executed as a deed.
[52] Supra.
In support of its submission that the document had been expressed to be executed as a deed, within the terms of s 127(3), Betterway says:
·the instrument self describes as a deed;
·the purpose and objects of the instrument indicate it is a deed;
·it is a one-sided agreement heavily in favour of Betterway and, being a deed, it avoids any argument as to a lack of consideration;
·the serious nature of the transaction and the significant trust that Betterway place in Ferngrove to perform its largely unilateral obligations is consistent with the solemn nature of a deed; and
·the phraseology and structure commonly found in deeds is present.[53]
[53] Clause 2.3.
Betterway submits also that an indication of intent had been apparent from the negotiation of two clearly distinct instruments at the same time; the Deed and the Supply Agreement. Further, Betterway relies on the words and conduct of the parties throughout the relevant period; the exclusive reference to the Deed as a deed and the Supply Agreement as an agreement and that the method of execution instructed for the Deed had been as a deed.[54] Finally, Betterway relies on the exclusive referral to the Deed as such, during the parties’ post execution conduct.[55]
[54] SOF [5]-[10].
[55] SSOF [14]-[31]; SSOF [1]-[9].
Section 127(3) of the Corporations Act 2001, addresses the rigid common law formalities for the execution of documents by corporations and relaxes those requirements. That approach is intended to provide aid to persons dealing with companies and, as a corollary, allow assumptions to be made that a document has been duly executed.[56] Section 127 focuses on the intention of the parties, rather than matters of ceremony and form. It requires a determination of whether the parties intended the relevant instrument to be executed (and to thus be effective) as a deed.
[56] Corporations Act 2001, ss 129(5) and (6).
Section 127(1) and (2) provide two methods of effective execution by companies. First, where a document is signed by a director(s), it allows for execution without use of the common seal. Second, it allows execution by affixation of the common seal where it is witnessed by a director(s). Section 127(3) is concerned specifically with deeds: ‘[a] company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with ss (1) or (2)’.
In Gibbons v Pozzan,[57] the trustee of a family trust had commenced an action against the appellant seeking payment of $300,000 plus interest under a "deed of loan agreement”. The appellant had argued below that the document was not worded and executed in the manner required to render it effective as a deed; particularly, because no seal had been affixed to the document. On appeal, the appellant contended that the method of execution provided for in s 127(2) had not been followed and that s 127(3) required the precise words "executed as a deed" to appear in the impugned document.
[57] Supra.
Duggan J did not ‘agree that the precise phrase used in the legislation must be incorporated into the document before s 127(3) can take effect.’ His Honour considered that, ‘[t]he section dispenses with certain common law formalities which were required for the execution of a deed’ and, ‘[t]he purpose of s 127 is to move away from these formalities and look to substance and intention.’ [58]
[58] Ibid, [30]; [33]-[34]; see also Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSWSC 379 [64]-[66].
Duggan J agreed with the trial judge that the word ‘expressed’, as contained in s 127(3), means ‘clearly indicated or distinctly stated, rather than implied.’[59] His Honour considered that the phrase, ‘expressed to be executed as a deed is wide enough to refer not only to the title of the document, but to the wording of other parts of the document such as the testatum, the testimonium and the attestation clauses.[60]
[59] Pozzan, supra [32].
[60] Ibid, [34].
Ferngrove submits that the absence of the phrase, ‘executed as a deed’, is fatal to the claim because the contra-distinct phrase, ‘signed as an Agreement’, is used in the execution block of the Deed. It says that phrase demonstrates the intention of the parties.
Ferngrove accepts that, in Gibbons v Pozzan,[61] the execution block in the deed of loan executed by the corporate appellant was in the form of a signing clause. Notwithstanding, Mr Manetta, for Ferngrove, submits that Gibbons does not assist me in this case and is distinguishable. I do not accept that submission.[62] Gibbons is directly concerned with s 127 of the Corporations Act 2001, and the Full Court rejected the argument, agitated before me, that the instrument had to state that it had been ‘executed as a deed’.
[61] Gibbons v Pozzan [2007]; (2007) 209 FLR 233
[62] I also reject the submission that the execution block was expressed in such a way that Mr Tang had merely witnessed a (non-existent) affixation of the seal as contrary to SOF [9], [10].
In this case, Gibbons requires my consideration, having regard to the whole of the Deed, as to whether the requisite intention set out in s 127(3) is expressed. I have proceeded on the basis that the phrase - ‘expressed to be executed as a deed’- is wide enough to refer not only to the title of the document but to the wording of other parts of the document.[63] In that respect, analysis of the Deed and the Supply Agreement reveals that:
·each execution block allows them to be ‘signed as an agreement’, ‘in the presence of’ a witness and by affixation of a seal;
·the Deed consistently describes itself as a deed;[64]
·the Supply Agreement consistently describes itself as an agreement;
·the purpose and objects of the Deed indicate it is a deed;
·the Deed is mostly in favour of Betterway;[65]
·the nature of the transaction the subject of the Deed is serious and reposes significant trust in Ferngrove to perform its obligations;
·the phraseology and structure commonly found in deeds is present in the Deed, such as: the description of the document as a deed in its title and footer on each page; the manner of identification of the parties; the commencement and introductory part which states a deed is made; Recital B which refers to the terms and conditions of the deed; the operative provisions that refer almost exclusively to the instrument being a deed; and,[66] the use of the word ‘covenant’ in respect of the most significant obligations contained in the Deed;[67] and,
·the characterisation of the Deed as a deed would avoid any argument about a lack of consideration, given the mostly unilateral obligations imposed on Ferngrove are consistent with the solemn nature of a deed.
[63] Gibbons, supra [34].
[64] Book of Documents, [2]-[10], Cover page, Date Endorsement, Recital B, cll 5.6, 6, 7, 8, 9.3, 10 and 12.
[65] Book of Documents, [5], cll 2.1, 2.2 and 2.3.
[66] Book of Documents, [2]-[10], cl 5 Confidentiality, cl 6 Amendment, cl 7 No Waiver, cl 8 No Merger, cl 9 Entire Agreement, cl 10 Counterparts, cl 11 Governing Law.
[67] Book of Documents, [5], cl 2.3.
Consequently, I find that the parties intended the Deed to be executed as a deed, as that phrase is understood in s 127(3) of the Corporations Act 2001. Further, I find the Deed to have been validly executed as a deed and that it is binding on the parties; Betterway executed in accordance with s 127(2)(c) and, Ferngrove in accordance with s 127(1)(c).
In reaching that conclusion, I have not relied on the words and conduct of the parties either before or after execution. In respect of that conduct, I do find there to have been exclusive reference to the Deed as a deed and the Supply Agreement as an agreement.[68]
Is the document a deed which has been effectively executed within the meaning of s 41(4) of the Law of Property Act?
[68] Book of Documents, [2]-[29].
When the parties requested I determine these preliminary questions, I anticipated an acceptance by both that the law of South Australia applied and particularly, the Law of Property Act 1936. Ferngrove contended, when the questions were argued before me, that the law of New South Wales governs the validity of the Deed. That submission enlivened a preliminary question to the preliminary question.
Ferngrove submits the choice of South Australian law recorded in clause 12 of the Deed, could only be effective if the Deed had been valid. Ferngrove drew a distinction, in that respect, between enforceability and invalidity. Where enforceability is in question, it submits, the proper law expressed in the contract is determinative. However, it submits, as this is a case concerning the validity of the Deed, the law of the place of contracting is the proper law for determining such validity.
Ferngrove submits that the place of contracting had been New South Wales; as it had been in that State where the seal had to be affixed but had not been affixed. Ferngrove submitted, therefore, that New South Wales law governed the validity of the instrument. As New South Wales had no equivalent to s 41(4) of the Law of Property Act 1936, Ferngrove submits, the Deed is not executed as a deed and is not binding.
If the law of the forum is the proper law, and the Law of Property Act 1936 applies, Ferngrove says that the operation of s 41(4) had been subject to a precondition, on its own terms, which limited its scope. That is, s 41(4) only applies to documents which had been intended to be executed as deeds and had not been validly executed as deeds at common law. As the Deed had not been intended to be executed as a deed - because it was not expressly intended to be so – then, Ferngrove submits, s 41(4) is inoperative.
Betterway submits that this question is concerned, like the last, with whether the Deed had been validly executed. It says the law to be applied in answering that question is that which the parties had chosen or purported to choose or, in the absence of expressed choice, that which would have been the putative proper law.[69]
[69] Republica Democratica de Timor Leste v Lighthouse Corporation Limited [2019] VSCA 290, [56]; Trina Solar (US) Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1.
Betterway submits, assuming the chosen law of South Australia applies, that it had executed the document in accordance with s 41(1)(b) of the Law of Property Act 1936. It says that, as Ferngrove had not executed the document in accordance with s 41(1)(b), because it did not affix its company seal, there had been a defective execution. In that case, it submits, that defective execution can be cured by s 41(4). That is because, Ferngrove submits, there is evidence external to the Deed that showed the parties had intended to be bound by the document as a deed.[70]
[70] Law of Property Act 1936, ss 41(5)(a) and 41(5)(c).
This question and the two that follow, are, given my answer to the second question above, alternate propositions. I have answered them not as hypotheticals but rather on the basis I may have erred in my findings in respect of the second question. This question, like the first and the second, is concerned with whether the contract had been validly executed. A preliminary question has been raised regarding the proper law to be applied in answering it.
The choice of law clause is clear; the law of South Australia governs the contract.[71] Further, the applicant has sued in South Australia and the law of this State is also the law of the forum. While Ferngrove did not address or challenge the assertion of Betterway that New South Wales is the law of the place where the contract is made, I am not satisfied New South Wales is that place. The determination of the place of contracting is sometimes difficult and, in that respect, I note that Betterway had signed the Deed in New South Wales and sent it to Ferngrove, who had sealed and witnessed the Deed, after that, in South Australia.[72] For the reasons that follow however, I do not need to and have not determined the place of contract formation.
[71] Book of Documents, [2]-[12], Clause 12.
[72] See the discussion in Cheshire and Fifoot, Law of Contract, Eleventh Australian Edition, LexisNexis Butterworths, Australia, 2017.
In Trina Solar,[73] the Full Court of the Federal Court considered on appeal the exercise by the primary judge of a discretion to grant leave to serve an originating process. Whether the entity, Jasmin Solar Pty Ltd, had been a party to the relevant contract and whether that contract contained an arbitration clause such as to found a stay, had been disputed. Resolution of that first question required application of either the law of the forum or the law of the putative contract. The primary judge said the law of the forum applied.
[73] Trina Solar (US) Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1.
The Full Court found that, when the question is an anterior one, such as whether the company Jasmin Solar Pty Ltd was properly a party at all, the Court must seek to give effect to the choices made by the parties as the expression of their intention.[74] The Full Court held that where a choice of law clause exists - as is the case here - any antecedent question must be determined under that expressed law. That is, where the parties have chosen or purported to choose the governing law of the contract, it must be applied. In the absence of an expressed choice, the Full Court said the applicable law would be the putative proper law of the contract.[75]
[74] Ibid, [37].
[75] Trina Solar (US) Inc v Jasmin Solar Pty Ltd (2017) 247 FCR 1; see also Republica Democratica de Timor Leste v Lighthouse Corporation Limited [2019] VSCA 290, [56].
The Law of Property Act 1936, applies to this question as it is part of the chosen law of the parties. In coming to that conclusion, I do not accept the submission of Ferngrove that the proper law clause in the Deed only represents an effective choice if the Deed is valid. That was the very issue in respect of Jasmin Solar, considered on appeal, in Trina. Further, I do not accept the submission of Ferngrove that, in the event South Australian law applies, the operation of s 41(4), is subject to a precondition which limits its scope. In that regard, I refer to but do not repeat my findings in respect of the expressed intention of the parties for the purposes s 127(3) of the Corporations Act 2001.
I would find, on the alternative basis explained, that Betterway executed the Deed in accordance with s 41(1)(b) of that Act, while Ferngrove did not. I would also find that there had, accordingly, been a defective execution by the respondent within the terms of, and curable by, s 41(4) of the Law of Property Act 1936.[76]
[76] Law of Property Act 1936, ss 41(5)(a) and 41(5)(c).
There is ample evidence, external to the Deed, to indicate the parties intended to be bound by it. The respondent has admitted the applicant owed obligations to the respondent under the Deed.[77] Further, the respondent has admitted that, before execution of the Deed, it began incurring expenses in preparation for the applications for accreditation and registration required under the Deed; with the applicants encouragement.[78] Further, Betterway says that between October 2016, and October 2017, Ferngrove had requested the applicants assistance to enable the progression of the relevant applications.[79] By early 2017, the respondent had indicated that it considered its attempts to advance the application to be futile; given what it asserted had been the applicant’s protracted uncooperativeness.[80] Further, the objective conduct of the parties, relevant to s 41 and upon which I rely, includes that: [81]
·on 19 October 2016 Mr Wang on behalf of Ferngrove sent an email to Mr Balfour of Betterway advising him that the respondent would try and fill the cans in the next two weeks;[82]
·on 11 November 2016, Mr Jiang on behalf of the respondent sent an email to Mr Balfour of the applicant responding to Mr Balfour’s email dated 10 November 2016;[83]
·on 29 November 2016, the applicant sent an email to Mr Jiang of the respondent providing documents with respect to IMF registration as requested under the Deed;[84]
·on 9 December 2016, Mr Jiang on behalf of the respondents sent an email to Mr Balfour of the applicant responding to Mr Balfour’s email dated 5 December 2016;[85]
·on 10 January 2017, Mr Jiang of the respondent sent an email to Mr Balfour of the applicant responding to Mr Balfour’s email dated 9 December 2016;[86]
·between December 2016, and September 2017, Mr Balfour on behalf of the applicant regularly liaised by telephone with officers of the respondent, both of whom advised the applicant of the representations as pleaded;[87] and,
·on 7 August 2017, Mr Balfour on behalf of applicants sent a text message to an officer of the respondent seeking an update on the registration process under the Deed and the respondent responded on the same day advising that it had not yet been achieved and that the applicant should follow up in the first week of September.[88]
[77] Defence (FDN 5), [12(a)]; cf the ineffective withdrawal of that admission in the Second Defence (FDN 6), [12(a)]; Uniform Civil Rules 2020, rr 69.1, 69.2, 71.1, 71.2; see also r 67.6(3).
[78] Defence (FDN 5), [12(b)].
[79] Defence (FDN 5), [12(d)].
[80] Defence (FDN 6), [12(e)]; Second Defence (FDN 6), [12(e)].
[81] Gibbons, [41]-[53].
[82] Book of Documents, [8].
[83] Book of Documents, [11].
[84] Book of Documents, [13].
[85] Book of Documents, [14].
[86] Book of Documents, [16].
[87] Book of Documents, [17].
[88] Book of Documents, [17].
The alternative answer to the question, is the document a deed which has been effectively executed within the meaning of s 41(4) of the Law of Property Act 1936, is yes.
Is the document binding on the parties as a simple contract supported by valuable consideration?
Ferngrove submitted that, assuming the Deed had not been validly executed, there had been no consideration recorded in the Deed for the obligations on its part. Any obligation had been unilateral, says Ferngrove, as the Deed required Ferngrove to obtain approval from the Chinese Government for the importation of baby formula to that country. The respondent submits that the applicant had given nothing to the respondent in return for its efforts to obtain that approval.
Betterway points to its obligations under the Deed as valuable consideration. It says it had to provide full details and specifications and samples for its infant formulations so as to enable the respondent to make the applications for accreditation of the premises and registration of the formulations.[89] Further, it says it had agreed, from the date of accreditation and registration of the formulation, that the respondent would manufacture and supply the formulations to the applicant on the terms and conditions set out in the Supply Agreement.[90]
[89] Book of Documents, [5], cl 2.4; SOF [12(d)]; Defence (FDN 5), [8(d)]; Second Defence (FDN 6), [8(d)].
[90] Book of Documents, [5], cl 3; SOF, [3(b)], [12(e)].
Ferngrove has overlooked the necessity for and importance of the valuable commercial and proprietary information which had to be disclosed by Betterway; so that it could get accreditation and be registered. Ferngrove pleads a failure by Betterway to give that information, as it says it was required to do, in its defence.[91] The Deed clearly obliges Betterway to provide full details and specifications and samples for its infant formulations. Without that valuable proprietary information, Ferngrove would have been unable to make application for registration of the formulations.[92] As in Gibbons v Pozzan, I see no reason why the Deed could not take effect, even if it is not a deed. If it is not a deed, I consider it, in the further alternative, to be a simple agreement because the parties evinced a clear intention to create a legal relationship, expressed the terms of their agreement in writing and the requirement for consideration had been met.[93]
[91] Defence (FDN 5), [12(d)], [12(e)] and [12(f)]; Second Defence (FDN 6), [12(d)], [12(e)], [12(f)] and [12(h)].
[92] Book of Documents, [5], cl 2.4; SOF [12(d)]; Defence (FDN 5), [8(d)]; Second Defence (FDN 6), [8(d)].
[93] Gibbons, Supra, [54].
On the further alternative basis explained, I do find that the Deed is supported by valuable consideration and would be enforceable and binding as a simple agreement.
Answers
Is the document entitled Deed sued on by the applicant binding on the parties as a validly executed Deed of common law? No.
Is the document binding on the parties as a validly executed deed pursuant to s 127(3) of the Corporations Act 2001 (Commonwealth)? Yes.
Does the Law of Property Act 1936 (SA) apply to the document? Alternatively, yes.
If so: is the document binding on the parties as a validly executed deed pursuant to s 44(1) or s 44(5) of the Law of Property Act 1936 (SA)? See below.
If so: is the document a deed which has been defectively executed within the meaning of s 41(4) the Law of Property Act 1936 (SA) and, if so, must the defective execution be taken to be valid pursuant to s 41(4) the Law of Property Act 1936 (SA)? Yes, and yes.
Is the document binding on the parties as a simple contract supported by valuable consideration? In the further alternative, yes.
I do not consider, given my answers above, that it is necessary to answer the question whether the applicant’s case gives rise to a reasonably arguable cause of action in estoppel.
2
11
1