De-Angelis v Wall
[2010] VCC 1314
•9 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
FAMILY PROPERTY DIVISION
Case No. CI-08-05426
| MARY-LOU DE ANGELIS | Plaintiff |
| v | |
| GRAEME WALL | Defendant |
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| JUDGE: | LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 August 2010 |
| DATE OF JUDGMENT: | 9 August 2010 |
| CASE MAY BE CITED AS: | De-Angelis v Wall |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1314 |
REASONS FOR JUDGMENT
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Catchwords: Whether proceeding compromised by agreement – Offer and Acceptance –
Section 126 Instruments Act 1958.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Pascoe | Maeve O’Brien & Associates |
| For the Defendant | Mr J Isles | Maitland-Smith & Associates |
| HIS HONOUR: |
1 This proceeding was commenced by Writ on 10 December 2008. The Statement of Claim alleges the plaintiff and the defendant were at all relevant times in a domestic relationship within the meaning of the Relationships Act 2008. It is further alleged the domestic relationship ended in or about September 2008. In consequence, the plaintiff seeks an order pursuant to section 45 of the said Act adjusting the interests of the parties in their real and personal property.
2 The Statement of Claim, inter alia, refers to two pieces of real estate which are in contention here. The first is a property situate at and known as 31 Cowrie Road, Torquay, being the whole of the land contained in Certificate of Title Volume 6735 Folio 900, in respect of which the parties are each named as registered proprietors as tenants in common in equal shares (“the Torquay property”).
3 The second is a property situate at and known as 22 Waterside Place, Maribyrnong, being the whole of the land contained in Certificate of Title Volume 10946 Folio 153, in respect of which the parties are each named as registered joint proprietors (“the Edgewater property”).
4 There are numerous other items of property and money referred to in the Statement of Claim not here relevant but in respect of which the plaintiff seeks adjustment as between her and the defendant.
5 In his Defence, the defendant admits the identity of each of the Torquay and the Edgewater properties and the fact the parties are registered as the proprietors of those properties as pleaded. The Defence otherwise denies allegations as to contribution as between the parties and joins issue. For my purposes it is not necessary to elaborate on the pleadings.
6 Much of the factual matrix necessary for my judgment in this matter is common ground between the parties.
7 A mediation in the proceeding was conducted on 7 August 2009 at which both parties were legally represented. The proceeding did not settle at mediation.
8 A conciliation conference was held on 7 August 2009 before Judge Kings. At that time the plaintiff was self-represented. The defendant was represented by counsel and his current solicitor, Ms Maitland-Smith. Again, the proceeding did not settle at the conciliation conference which concluded early in the afternoon on 4 May 2010.
9 The trial of the proceeding had been set down for hearing on 14 May 2010.
10 At the unsuccessful conciliation conference Judge Kings made orders providing a timetable for preparation of the proceeding for trial, including the preparation, filing and exchange of court books and other matters.
11 At 3.41 pm in the afternoon, soon after the failed conciliation conference, Ms Maitland-Smith, acting on instructions, forwarded an email to the plaintiff. The email was in the following terms:
“Ms M De Angelis
OPEN LETTER TO BE PRODUCED
ON THE QUESTION OF COSTS
Dear Ms. De Angelis,
Wall – Property Settlement Matter
We advise our client is prepared to settle your claim and counterclaim upon the following basis:
1 Our client pay to you $233,000 within 60 days of the date hereof.
2 Upon the payment you transfer to our client all your right title and interest in the Edgewater property and our client refinance the existing mortgage to release you from any indebtedness to the National Australia Bank.
3 That simultaneously with the transfer referred to in paragraph 2 hereof, our client transfer to you all his right title and interest in the Torquay property and you refinance the mortgage on the said property to release our client from any indebtedness to the mortgagee, namely the National Australia Bank.
4 Otherwise each party retain all of the property in their respective possession, ownership or control without further adjustment, with each party retaining the current balance of their member accounts in the self managed superannuation fund operated by you and our client.
5 That our client provide a release and indemnity to you for any past present or future claims by Laticrete Pty Ltd arising out of any potential debt to Laticrete Pty Ltd.
This offer will be produced to the Court on the question of costs if the matter proceeds to trial and our client will rely on its contents as to his offer to resolve your claim and counterclaim.
Yours faithfully,
Maitland-Smith & Associates Pty Ltd.”
12 I shall hereafter refer to this email as “the offer email”. The offer email in terms was clearly an offer to settle the proceeding on the terms contained within it. In submissions, Mr Pascoe of counsel, who appeared on behalf of the plaintiff, submitted that the offer email in terms was designed for the purpose of being produced to the Court at the outset of the hearing of the proceeding should it proceed to trial. He also submitted it was not in terms a “Calderbank offer”. I agree that the offer was not in the form of a Calderbank offer but I do not agree that the purpose of the wording of the offer was to have it produced at the outset of any hearing should the proceeding go to trial. As the initial words of the offer email suggests, its purpose was to be produced “on the question of costs”. That suggests it would be produced after the outcome of the proceeding was known. In any event, it is not necessary that I decide this question.
13 In evidence before me, Ms Maitland-Smith said she had sent the offer email after discussions with the defendant at the conciliation conference and on his oral instructions. There was no written instruction from the defendant to send the offer email. She said she had no retainer in writing from the defendant and their agreement in relation to costs was contained in correspondence exchanged between the two. She also said her firm normally signs its correspondence with the words “Maitland-Smith & Associates Pty Ltd”. I accept the evidence of Ms Maitland-Smith as to these matters.
14 The defendant gave evidence that he did not authorise Ms Maitland-Smith to dispose of any interest of his in any property. He agreed the offer email was written on his instructions but he said he did not see the final form of it before it was sent. He said when he did see it he thought “it was all wrong”. He said he expected he would have seen the email before it was sent to “at least proofread the offer”. He said there was personal property of his located within the Torquay property he wanted to retrieve.
15 Having heard and seen Ms Maitland-Smith and the defendant give evidence before me, I am satisfied the offer email was sent by Ms Maitland-Smith, acting as solicitor for the defendant and on his oral instructions. I am satisfied that Ms Maitland-Smith at no stage received any written instructions from the defendant to forward the offer email.
16 On the morning of 5 May 2010, the plaintiff phoned Ms Maitland-Smith. She said that she would accept the defendant’s offer contained in the offer email. In substance, Ms Maitland-Smith replied “OK, I will get back to Graeme”, meaning the defendant.
17 The plaintiff understood the reference by Ms Maitland-Smith getting back to her client was nothing more than a referral back to advise that the proceeding had settled and to put in train that which had to be done to give effect to the settlement.
18 There were no further discussions on 5 May.
19 On 6 May 2010, having not heard back from Ms Maitland-Smith, the plaintiff replied to the offer email by reply email at 8.22 am as follows:
“Re: Offer from Defendant to the Plaintiff
Dear Wendy defendant’s offer to settle my statement of claim.
As the trial is scheduled the (sic) next Friday and there are things yet to be resolved and filed with the court, I will need to know by 10.00am this morning.
If I do not hear from you I will assume that the Defendant would like to continue the matter and seek to trial.
This acceptance will be produced to the Court on the question of costs of (sic) the matter proceeds to trial and I will rely on its contents to my acceptance to resolve your clients defence and counterclaim
Kind regards
Mary De Angelis”
20 I will hereafter refer to the plaintiff’s email sent at 8.22 am on 6 May 2010 as “the acceptance email”.
21 The plaintiff gave evidence before me. She had previously set out her evidence in an affidavit sworn 23 July 2010. The affidavit and attached exhibits went into evidence as Exhibit “A”. In evidence she adopted the content of the affidavit as being true and correct and she was cross-examined. Where relevant as to chronology and documents, I accept the evidence of the plaintiff.
22 There is a minor issue arising from the chronology of little consequence. The plaintiff said that having sent the acceptance email at 8.22 am and not having heard back from Ms Maitland-Smith, she phoned Ms Maitland-Smith at about 10.00 am but she was unavailable to take her call. She said that at about 10.15 am, Ms Maitland-Smith phoned her and informed her the defendant had withdrawn his offer. There followed further discussion during which Ms Maitland-Smith put a revised offer not here relevant.
23 The minor difference arising on the chronology is that in evidence Ms Maitland-Smith said she in fact phoned the plaintiff at 9.50 am and advised her the offer contained in the offer email had been withdrawn. It is not necessary I decide this discrepancy in the evidence.
24 In the days following, other emails were exchanged, the content of which are not here relevant save to note the defendant, through his solicitor, confirmed the matter had not settled on the terms initially offered in the offer email.
25 When the matter was listed for trial on 14 May 2010 it was not reached. The plaintiff, who was still representing herself, told the Judge in charge of the Reserve List that day that the case would take one day to hear it, having settled, and she was seeking orders to give effect to the settlement. Counsel for the defendant on the other hand said the proceeding had not settled and would proceed on all issues and would take five days to complete.
26 The plaintiff retained solicitors and gave notice by letter dated 23 July 2010 from them that she in effect wished to move the Court for judgment in the terms of the offer email. Put simply, the plaintiff, through her solicitors, asserted in the 23 July letter that the proceeding had settled by the plaintiff’s acceptance in writing of the defendant’s offer.
27 The plaintiff’s application seeking to enforce the offer came on before me on 26 July 2010, at which time I made orders directing delivery of amended pleadings. That was done.
28 On 28 July 2010, the plaintiff delivered and filed an Amended Statement of Claim. Under the heading “The Compromise of the Relationship Act Proceedings” and taking up paragraphs 18 to 33 inclusive of the Amended Statement of Claim, the plaintiff pleads her case to enforce the compromise.
29 In summary form, the plaintiff pleads, because of the terms of the offer email, its acceptance and the defendant’s subsequent withdrawal of the offer:
1
A contract of compromise was entered into between the parties (paragraph 29); alternatively
2
By accord and satisfaction or further alternatively accord and conditional satisfaction, the parties have discharged and released each other of their respective causes of action in the Relationships Act Proceedings and have substituted their rights and obligations under the contract of compromise (paragraph 30);
3
The defendant anticipatorily breached and/or repudiated the contract of compromise;
4
The plaintiff remains willing to give effect to the contract of compromise (paragraph 33).
30 The plaintiff seeks specific performance of the contract of compromise as pleaded.
31 By his Amended Defence the defendant:
1
Denies there was brought into existence a contract of compromise and pleads that even if there was a contract of compromise brought into existence, insofar as it dealt with a disposition of an interest in land, the offer email was firstly, not signed by the defendant as the person to be charged within section 126 of the Instruments Act 1958 and, secondly, was not signed by a person lawfully authorised in writing by the defendant for the purposes of the same statutory provision (paragraph 23);
2
Pleads that the offer email in terms was not an offer capable of acceptance and, further, the parties intended not to be legally bound until a formal agreement was executed embodying the full terms of any agreement (paragraph 24);
3
Pleads that the plaintiff’s acceptance email was not in terms an acceptance at all but at best amounted to either a conditional acceptance or a counter offer which was not accepted by the defendant (paragraph 24);
4
Denies a contract of compromise was brought into existence between the parties and further says any such contract was void for uncertainty or was incomplete (paragraph 26);
5
Asserts in so far as the offer email referred to both the Edgewater property and the Torquay property, the description was insufficient (paragraph 26.1);
6
Pleads that if the offer contained in the offer email was accepted (which is denied) the resultant agreement amounts to a disposition of an interest in land for the purposes of section 126 of the Instruments Act 1958 and the agreement did not amount to a sufficient note or memorandum in writing identifying the land (paragraph 26.2);
7
Pleads that if the offer contained in the offer email was accepted (which is denied), the resultant agreement failed to specify a number of matters which needed to be agreed to give effect to such agreement (paragraph 26.3)
32 The defendant opposes relief in the nature of specific performance as pleaded in the Amended Statement of Claim.
33 The parties agree I should decide only the questions raised by the relief sought by the plaintiff consequent upon the pleading in the Amended Statement of Claim under the heading “The Compromise of the Relationship Act Proceedings” and the defences raised by the Amended Defence consequent upon those pleadings. My judgment will therefore see either an end to the proceeding in full because it has been compromised or dismissal of the causes of action raised by what is described as “The Compromise of the Relationship Act Proceedings” with the remaining causes of action to be determined by another Judge of the Court.
34 Because of the view that I have formed of the evidence, it is not necessary that I decide each and every point pleaded by the defendant. I have taken this approach because I have reached the opinion that the plaintiff cannot succeed on her claim contained in those paragraphs of the Amended Statement of Claim that relate to “The Compromise of the Relationship Act Proceedings” for two reasons.
35 First, when read together, the offer email and the acceptance email do not amount to a concluded agreement. In particular, the acceptance email includes the following:
“Further to our conversation yesterday, I am prepared to accept the
defendant’s offer to settle my statement of claim.
As the trial is scheduled the (sic) next Friday and there are things yet to be resolved and filed with the court, I will need to know by 10.00am this morning.
If I do not hear from you I will assume that the Defendant would like to continue the matter and seek to trial.
This acceptance will be produced to the Court on the question of costs of (sic) the matter proceeds to trial and I will rely on its contents to my acceptance to resolve your clients defence and counterclaim.”
36 The words used by the plaintiff include reference to “things yet to be resolved and filed with the Court”. This suggests to me that there was, at the time the acceptance email was sent, matters left unresolved. If the proceeding was indeed fully compromised, there would be nothing left to resolve.
37 The reference to things to be “filed with the Court” could only have been a reference to the court books for the trial pending. That is not a matter needing of resolution, for each party could file its own court book. The reference to “things yet to be resolved” cannot have been a reference to the court books.
38 I accept the submission of Mr Isles, who appeared for the defendant, that the use of the words “things yet to be resolved and filed with the Court” suggests there had not been a settlement of all things necessary to be agreed between the parties, or alternatively, there were things yet to be resolved or it was the intention of the parties there be a written document signed by all parties.
39 The defendant pleads there were a number of matters that in reality still had to be resolved and in respect of which both the offer email and the acceptance email were silent. The offer email envisaged payment by the defendant within 60 days. In the meantime what was the position with regard to payment of mortgages, rates and outgoings such as insurance? Further, I think it unlikely that the mortgagee over each of the Edgewater and Torquay properties would do anything to relinquish its security absent a formal agreement.
40 The reference in the acceptance email to the words “If I do not hear from you I will assume that the defendant would like to continue the matter and seek to trial” strongly suggests to me the plaintiff herself did not, at the time the acceptance email was sent, regard the matter as having settled. At best the words suggest to me settlement at that point was to await the defendant’s final approval. When the plaintiff spoke with Ms Maitland-Smith late on 4 May advising she would accept the defendant’s offer, Ms Maitland-Smith said “OK, I will get back to Graeme” or words to like effect. That suggests to me Ms Maitland-Smith was in fact meaning she would have to get her client’s final approval. In my view, the words used by the plaintiff herself in the acceptance email which I have set out immediately above tend to confirm this was so.
41 In terms, the acceptance email does not assert a settlement. It does assert a preparedness to accept the defendant’s offer. That is all. The clear implication from the terms of the acceptance email is if the defendant does not agree to settle, the matter will proceed to trial. In that event “this acceptance will be produced to the Court on the question of costs if the matter proceeds to trial and I will rely on its contents to my acceptance to resolve your client’s defence and counterclaim”.
42 Even if I be in error as to whether the offer email and the acceptance email do not constitute a binding agreement to settle this matter, there remains the second reason why the plaintiff should fail. That relates to section 126 of the Instruments Act 1958.
43 That provision provides as follows:
“Instruments Act 1958 - SECT 126
PART XII MISCELLANEOUS PROMISES ETC. REQUIRED TO BE IN
WRITING
Certain agreements to be in writing
126. Certain agreements to be in writing
(1)
An action must not be brought to charge a person upon a special promise to answer for the debt, default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land unless the agreement on which the action is brought, or a memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.
(2) It is declared that the requirements of subsection (1) may be met in
accordance with the Electronic Transactions (Victoria) Act 2000.”
44 It is agreed between the parties if there was an agreement between them amounting to a contract compromising the proceeding, it amounted to a contract for the disposition of land. That was so, because the settlement or compromise sought to adjust the parties interests in each of the Edgewater and Torquay properties.
45 Amongst other points, the defendant argues the compromise failed to properly describe the properties for the purposes of the operation of section 126. Leaving that argument aside, the defendant also argues the contract of compromise is otherwise unenforceable because the offer email was not a memorandum or note of the agreement signed by the defendant and even if it was signed by Ms Maitland-Smith’s firm, that firm was never “a person authorised in writing” by the defendant to sign such an agreement within the section. In other words, if there was an agreement it is not enforceable because the requirements of section 126 have not been met.
46 In order to enforce the contract of compromise so-called, the plaintiff must prove that when the offer email was sent “Maitland-Smith & Associates Pty Ltd” the company that purported to sign the offer email was authorised in writing by the defendant to enter into an agreement on the defendant’s behalf to dispose of his interest in land. There is no such evidence. There is only evidence to the contrary from both the defendant and Ms Maitland-Smith.
47 It follows that if there be a contract of compromise as pleaded by the plaintiff, it is unenforceable by operation of section 126 of the Instruments Act 1958: see Grummitt v Natalisio [1968] VR 156 per Gillard J, especially at pages 158- 160. This is not a case where the plaintiff can argue section 126 should not be given effect to either because of part performance by the defendant or estoppel arising from the plaintiff’s action in reliance upon the offer email and neither counsel suggested otherwise: see Collin v Holden [1989] VR 510.
48 For the above reasons, it is not necessary I decide the plaintiff’s argument the offer email was signed applying the provisions of the Electronic Transactions (Victoria) Act 2000. Nor is it necessary I decide whether each of the properties was properly described in the offer email for the purposes of the operation of section 126 of the Instruments Act 1958.
49 For these reasons, the relief sought by the plaintiff consequent upon what is pleaded in the Amended Statement of Claim under the heading “The Compromise of the Relationship Act Proceedings” and contained in paragraphs 18 to 33 inclusive must be refused.
50 The remainder of the proceeding will be adjourned to be tried by another Judge as a cause on a date to be fixed.
51 I will hear the parties on costs.
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