Janati v Nulis Nominees (Australia) Limited (ACN 008 515 633)
[2024] VCC 1826
•19 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-01693
| SAYED ALI JANATI | Plaintiff |
| v | |
| NULIS NOMINEES (AUSTRALIA) LIMITED (ACN 008 515 633) | First Defendant |
| and | |
| MLC LIMITED (ACN 000 000 402) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 October 2024 | |
DATE OF JUDGMENT: | 19 November 2024 | |
CASE MAY BE CITED AS: | Janati v Nulis Nominees (Australia) Limited (ACN 008 515 633) & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1826 | |
REASONS FOR JUDGMENT
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Subject:CONTRACTS
Catchwords: Whether binding oral agreement reached at mediation - whether plaintiff signed, sealed and delivered deed polls – where defendants requested interpreter’s affidavit but not provided – where deed poll signed but not sent - nature of agreement where deed polls signed by plaintiff only
Legislation Cited:
Cases Cited:Masters v Cameron (1954) 91 CLR 353; Sully v Englisch [2022] VSCA 184; Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd & Ors (1986) 40 NSWLR 622; BJP1 v Salesian Society (Vic) Inc [2021] NSWSC 241; Kwu v State of New South Wales [2024] NSWSC 666; Delaney v Delaney [2022] VSCA 48; Nurisvan Investment Ltd & Anor v Anyoption Holdings [2017] VSCA 141; Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555; Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396; Barratt v Rees [2014] VSCA 327; Burns Philp Hardware Ltd v Howard Chiat Pty Ltd (1986) 8 NSWLR 621; Monarch Petrolum NL v Citco Australia Petroleum Ltd [1986] WAR 310; Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296; Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104; Segboer & Anor v A J Richardson Properties Pty Limited & Anor [2012] NSWCA 253; NTT Australia Digital Pty Ltd v Cover Genius Servies Pty Ltd [2020] NSWSC 1378; Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Ferrari | Berrill & Watson Pty Ltd |
| For the First Defendant | Mr B Petrie | K&L Gates |
| For the Second Defendant | Mr A Thangarajah | HWL Ebsworth Lawyers |
TABLE OF CONTENTS
ISSUES FOR DETERMINATION
FACTUAL MATRIX
The original claim
An informal settlement conference is organised
A court-ordered mediation is conducted and an oral agreement is reached
The Defendants provide deed polls for execution
The Defendants confirm that they each require an interpreter’s affidavit
MBL ceases to act for the Plaintiff
The Defendants apply for summary judgment on grounds of settlement
WAS A BINDING ORAL AGREEMENT REACHED AT THE MEDIATION?
WERE THE TRUSTEE’S DEED AND THE INSURER’S DEED SIGNED, SEALED AND DELIVERED BY THE PLAINTIFF?
CONCLUSION
HER HONOUR:
1Best practice, in a court-ordered mediation, requires:
(a) agreement (ideally before the mediation commences, but at least before it concludes) as to whether any oral agreement reached is immediately binding, or only binding after it is formally documented;
(b) agreement as to whether any party requires an accredited interpreter to attend the mediation, or for any document to be translated; and
(c) before the mediation is concluded, agreement on the next steps and any remaining issues to be addressed.
2Best practice was not followed in this case. I venture to suggest that it is not followed in many mediations. This is what can happen if it is not.
Issues for determination
3The plaintiff claims to be entitled to a total and permanent disability benefit (“TPD benefit”) in his capacity as a member of a superannuation fund. The first defendant (“the trustee”) is the trustee of the superannuation fund. The second defendant (“the insurer”) is the insurer of TPD benefits for the fund. Both defendants have sought summary judgment on the ground that the proceeding was resolved either at mediation, or shortly afterwards. The plaintiff, on the other hand, contends that the proceeding should be re-listed for trial.
4The key questions for determination are:
(a) whether an oral agreement reached at mediation was binding and enforceable; and
(b) whether two deed polls, signed by the plaintiff after the mediation, were effective to release the defendants from any liability for the claims he makes in this proceeding.
5These questions can only be answered by considering the objective intentions of the parties, having regard to the factual matrix. Accordingly, it is necessary to set out that factual matrix in some detail before turning to consider whether the oral agreement reached at mediation was binding and what, if anything, was the effect of the two deed polls.
Factual matrix
The original claim
6The plaintiff was, until 7 September 2018, a sash-window assembly-line worker. He says he ceased worked on that date due to abdominal pain, lower back pain and symptoms of anxiety and depression. He says that, since then, he has been unable to work. In 2021, he lodged a claim with the trustee for payment of a TPD benefit. As is common in the superannuation industry, the trustee held an insurance policy with the insurer which provided for TPD benefits for members. Under the terms of the policy, the insurer was to pay any insured benefits to the trustee and the trustee was to pay any benefits received to the relevant insured member.
7The amount of the TPD benefit, if the plaintiff met the criteria for payment, was $441,000.
8The insurer rejected the plaintiff’s claim. This decision was affirmed by the trustee.
9On 19 April 2023, the plaintiff commenced these proceedings, claiming that the trustee and insurer had breached their duties in declining his claim.[1] He sought (in essence) a declaration that he was entitled to a TPD benefit and an order that the insurer pay the amount of that benefit to the trustee, and the trustee pay it to him.
[1]As to the grounds for challenging decisions of this kind by an insurer or superannuation trustee, see Karger v Paul [1984] VR 161; Finch v Telstra Super Pty Ltd (2010) 242 CLR 252; and Hannover Life Re of Australasia Ltd v Sayseng (2005) 13 ANZ Ins Cas ¶90-123; [2005] NSWCA 214
10Throughout the claims process, and at the time he commenced these proceedings, the plaintiff was represented by Maurice Blackburn Lawyers (“MBL”).
11The insurer, represented by HWL Ebsworth, filed a defence on 17 July 2023. The trustee, represented by K&L Gates, filed a defence on 4 August 2023.
An informal settlement conference is organised
12On 8 August 2023, the insurer’s lawyer wrote to the other parties’ lawyers and proposed an early informal settlement conference (“ISC”). It was subsequently agreed that this ISC would be held on 17 October 2023 at 2.00pm via Microsoft Teams.
13On 17 October 2023 at 1.40pm, the plaintiff’s lawyer wrote to the other parties’ lawyers stating:
“Just letting you know we may be slightly delayed for the ISC as we are awaiting the interpreter. I will try to keep you updated and hopefully we can still start close to 2pm.”
14The trustee’s lawyer replied at 1.50pm:
“Noting that your client requires an interpreter, if a holistic settlement is ultimately reached today, we request that the interpreter swear/affirm an affidavit deposing to the translation and the plaintiff’s understanding of my client’s standard, separate Deed.
I propose to use the form of affidavit used in another, similar matter involving your firm, in which an interpreter was required.
Can you confirm the language the interpreter will be using?”
15The plaintiff’s lawyer responded to this email with the sentence “[t]he interpreter is using Dari”.
16The proceeding did not settle as a result of the ISC.
A court-ordered mediation is conducted and an oral agreement is reached
17The case management orders made in this proceeding required the proceeding to be mediated by 1 April 2024. On 21 March 2024, the plaintiff’s lawyer wrote to the trustee’s lawyer confirming the mediation would be held on 8 April 2024, commencing at 10.00am, by video link. She also confirmed the identity of the mediator, and that the mediation fee would be paid equally by the parties. She concluded by stating:
“… if this matter settles it is likely to be agreed on ‘the usual terms’. Therefore, assuming your client is attending in good faith with a view to resolving the dispute, we ask that you have on hand a proposed deed of release which can be amended and agreed to by all parties and signed on the day, so that any resolution can be expedited without delay.”
18The trustee’s lawyer replied to this letter by email the same day, stating:
“For the avoidance of any doubt, if and when a settlement is agreed between the parties, my client will utilise its separate, standard Deed to document the settlement to the extent it concerns my client.”
19On 8 April 2024 at 9.19am, the trustee’s lawyer wrote to all parties, replying to the earlier email chain concerning the interpreter arranged for the ISC, stating:
“Further to the email correspondence copied below in connection with the unsuccessful ISC, is an interpreter attending the mediation today?”
20No response to this email was tendered in evidence.
21The joint session of the mediation commenced at about 10.20am.[2] Before the joint session commenced, the mediator said to the trustee’s lawyer that an interpreter was in attendance with the plaintiff. The trustee’s lawyer told the mediator that an interpreter’s affidavit would need to be sworn or affirmed by the interpreter if a settlement was reached.[3]
[2] Paragraph [11] of the insurer’s solicitor’s affidavit, affirmed 30 June 2024
[3] Paragraph [18] of the trustee’s solicitor’s affidavit, affirmed 28 June 2024
22Unbeknownst to the trustee’s lawyer (and presumably the mediator), there was no accredited interpreter present at the mediation.[4] The plaintiff was accompanied at the mediation by a friend who spoke Dari. This friend spoke English better than the plaintiff, and so was able to provide some assistance with interpretation, but was not an accredited interpreter. The plaintiff says that, as a result, he “did not properly understand the substance of what was happening at the mediation and felt under a lot of pressure and stress”.[5]
[4] Paragraph [5] of the plaintiff’s affidavit, affirmed 19 August 2024
[5] Paragraph [5] of the plaintiff’s affidavit, affirmed 19 August 2024
23The joint session concluded at about 11.00am. The insurer’s representatives were placed in a breakout room.[6] Presumably, the plaintiff and his representatives were also placed in a breakout room. The trustee’s lawyer was told he would be contacted by telephone if a settlement was reached, having indicated to the mediator that the trustee would be prepared to resolve the proceeding on the basis that it bear its own costs of the proceeding.[7]
[6] Paragraph [12] of the insurer’s solicitor’s affidavit, affirmed 30 June 2024
[7] Paragraph [21] of the trustee’s solicitor’s affidavit, affirmed 28 June 2024
24At approximately 12.44pm, the insurer’s representatives conveyed a settlement offer to the mediator of $185,000 “all-inclusive”. At approximately 1.00pm, the mediator informed the insurer’s representatives that the plaintiff had accepted this offer on the “usual terms”, including “all policies at an end”.[8] At approximately 1.08pm, the insurer’s lawyer rang the trustee’s lawyer and said that a settlement agreement had been reached pursuant to which:[9]
(a) the insurer would pay the sum of $185,000 all-in to the plaintiff; and
(b) the trustee would bear only its own costs of the proceeding.
[8] Paragraphs [13]-[14] of the insurer’s solicitor’s affidavit, affirmed 30 June 2024
[9] Paragraph [22] of the trustee’s solicitor’s affidavit, affirmed 28 June 2024
25The trustee’s lawyer responded (to the insurer’s lawyer) that he would send his client’s standard separate deed to the plaintiff’s lawyer for execution, as well as a proposed interpreter’s affidavit.[10]
[10] Paragraph [24] of the trustee’s solicitor’s affidavit, affirmed 28 June 2024
26There is no evidence of anything further being said as part of the mediation.
The trustee and insurer provide deed polls for execution
27At 1.25pm that afternoon, the trustee’s lawyer sent the plaintiff’s lawyer an email. The email, which was marked “[w]ithout prejudice” and not copied to the insurer’s lawyer, stated:
“I refer to the settlement of this matter reached between the parties today at mediation, pursuant to which my client bears only its own costs.
Attached is a copy of my client’s standard, separate Deed of Release.
…
I will write further to you shortly to provide you with the proposed interpreter’s affidavit, to be sworn/affirmed by the person interpreting the defendants’ respective Deeds to your client.”
28The attached deed of release (“the trustee’s deed”) was a deed poll - that is, intended to be executed by the plaintiff alone, and only expressed to be binding on him. In simplified terms, it:
(a) provided that the plaintiff “agrees to resolve” the proceedings against the trustee, on the basis that the proceedings are dismissed and the trustee bears its own costs;
(b) provided for an immediate release of the trustee and related entities “[f]rom when the [plaintiff] signs this Deed”;
(c) defined the “Payment Amount” as $185,000 inclusive of GST;
(d) required the plaintiff to sign consent minutes for the dismissal of the proceeding with no order as to costs against the trustee “[w]ithin 14 days of receipt of the Payment Amount from the Insurer”;
(e) stated that the plaintiff elected not to have insurance cover for death or permanent incapacity if they remained a member of the fund;
(f) stated that both the plaintiff and the trustee, and related entities, would keep the provisions of and arrangements referred to in the deed, confidential;
(g) stated that the plaintiff would not disparage the trustee or related entities; and
(h) provided that the trustee’s deed set out “the entire understanding” between the plaintiff and the trustee.
29At 1.26pm, the trustee’s lawyer sent the plaintiff’s lawyer a further email, this time copied to the insurer’s lawyer and not marked “without prejudice”, attaching a proposed interpreter’s affidavit. The email stated:
“Attached is an affidavit to be sworn/affirmed by the person interpreting the defendants’ respective Deeds to your client, noting an interpreter was present in the joint session today.”
30At some stage that afternoon, the plaintiff signed the trustee’s deed, with his friend acting as witness. However, it was not sent to the trustee’s solicitor. The trustee only became aware that it had been signed on the day of the mediation when it was disclosed in the lead up to the hearing of this application.[11]
[11] Affidavit of trustee’s solicitor, affirmed 25 October 2024
31At 3.19pm, the insurer’s lawyer sent the plaintiff’s lawyer an email, not copied to the trustee’s lawyer, attaching a deed poll for execution by the plaintiff (“the insurer’s deed”). The text of the email simply stated “[p]lease see attached Deed Poll for [the plaintiff] to execute and return to me”. In simplified terms, the insurer’s deed:
(a) recorded in recitals that the insurer had agreed to resolve the plaintiff’s claim on the terms set out in the deed;
(b) stated that the plaintiff agreed to accept the sum of $185,000 (inclusive of costs), with the insurer to bear its own costs;
(c) stated that the plaintiff acknowledged this sum was paid in full and final satisfaction of his claims, the policy and the proceedings;
(d) provided that the plaintiff released the insurer;
(e) provided that the plaintiff was no longer an insured person;
(f) provided that the plaintiff “must not disclose” the fact or terms of the settlement;
(g) provided that the plaintiff “will not” disparage the insurer; and
(h) provided that the insurer’s deed “represents the entire terms of the settlement” between the plaintiff and the insurer.
32The insurer’s deed also contained the following two conflicting clauses relating to the date for payment of the settlement sum:
“7.The Proceedings are to be dismissed on the terms set out in Annexure ‘A’ to this Deed Poll within 7 days of receipt of the Agreed Sum by the Releasor’s legal representative.
8. Payment of the Aged Sum is to be made within 28 days of receipt by MLCL (or its solicitors, HWL Ebsworth) of the original of this Deed Poll duly executed by the Releasor and the orders made by the Court on the terms of Annexure ‘A’ to this Deed Poll.”
33On 11 April 2024, the plaintiff’s lawyer emailed the County Court registry, copied to the other parties’ lawyers, stating that the matter had been settled in principle and attaching signed consent minutes vacating the trial and listing the proceeding for an administrative mention.
The trustee and insurer confirm that they each require an interpreter’s affidavit
34On 13 April 2024, the plaintiff signed the insurer’s deed poll, witnessed by his friend. On 22 April 2024, the plaintiff’s lawyer emailed a copy of the signed insurer’s deed poll to the insurer’s lawyer (not copied to the trustee’s lawyer). The same day, the insurer’s lawyer responded, asking for a copy of “the interpreter’s affidavit”. This was the first reference to an interpreter’s affidavit in correspondence from the insurer’s lawyer, although they were copied into the email from the trustee’s lawyer attaching a proposed interpreter’s affidavit. The plaintiff’s lawyer replied:
“The interpreter was a trusted friend of our client.
In our view an interpreter’s affidavit is not required, but please advise if you take a different view.”
35The insurer’s lawyer then responded:
“We require the interpreter to swear / affirm an affidavit in the format sent by Sam Rappensberg on 8 April 2024. This was always to be the case and was discussed prior to the ISC also.”
36Meanwhile, on 17 April 2024, the trustee’s lawyer had emailed the plaintiff’s lawyer asking for an update on the execution of the trustee’s deed and interpreter’s affidavit. The email was marked “without prejudice” and was not copied to the insurer’s lawyer. The plaintiff’s lawyer replied on 18 April 2024 that it was “in process and you should receive it next week”.
37On 29 April 2024, the trustee’s lawyer wrote to the plaintiff’s lawyer stating:
“I understand the second defendant received an executed copy of its Deed early last week.
Can you please provide me with an update as to when I can expect an executed copy of my client’s Deed, along with the completed and sworn/affirmed interpreter’s affidavit?”
38The plaintiff’s lawyer responded “I hope to be able to provide you with both today”.
39On 30 April 2024, the plaintiff’s lawyer wrote to all parties’ lawyers stating:
“We are unable to provide an Interpreter’s Affidavit at this time.
We are continuing to seek our client’s instructions and I hope to be able to provide you with a further update soon. In the meantime, I confirm that settlement terms have not been executed and remain subject to execution of Deed Polls for each defendant and an accompany Interpreter’s Affidavit.
For the avoidance of doubt, we understand that payment of the settlement sum will not be made until HWLE receives an updated signed Deed Poll and accompanying Interpreter’s Affidavit.”
40There then follows multiple emails from the trustee’s and insurer’s lawyers seeking an update on the provision of the requested documents.
MBL ceases to act for the Plaintiff
41Ultimately, on 31 May 2024, the plaintiff’s lawyer informed both the insurer’s lawyer and the trustee’s lawyer, by telephone, that she was preparing an application for leave to cease to act and that the requested documents would not be provided. By letter to the trustee’s lawyer dated 3 June 2024, MBL also asserted an equitable lien over any moneys remitted to the plaintiff.
42MBL was given leave to cease to act on 16 July 2024.
The Defendants apply for summary judgment on grounds of settlement
43The defendants’ summonses for summary judgment were made returnable on 29 October 2024. The hearing took a day. Five affidavits were sworn in support of the summonses and two in opposition. Written submissions were provided by all parties. In addition, well over 1,500 pages of authorities were provided to the Court as relevant to the issues in dispute.
Was a binding oral agreement reached at the mediation?
44The uncontradicted evidence establishes that, by the conclusion of the mediation, the parties had agreed to resolve the dispute between them on the following terms:
(a) the insurer would pay the plaintiff $185,000;
(b) the plaintiff would cease to be an insured member; and
(c) each party would bear their own costs of the proceeding.
45The critical issue for determination is not whether this agreement was made, but whether it was a legally-binding agreement. The plaintiff submitted that there was no legally-binding agreement; and that the parties’ objective intention was that any agreement reached at mediation would not be binding until a formal document was drawn up and executed. The trustee submitted that, having regard to all of the circumstances, a binding agreement was reached at mediation within either the first or fourth of the “Masters v Cameron”[12] categories. The insurer relied principally on the plaintiff’s execution of the insurer’s deed, but adopted the trustee’s submissions in relation to this issue.
[12]Masters v Cameron (1954) 91 CLR 353
46Four categories of agreement are invariably described by judges considering this question:[13]
(a) where the parties have agreed to all the terms of their bargain, and intend to be immediately bound, but also propose to re-state the terms more fully in a formal document;
(b) where the parties have agreed to all the terms of their bargain, but have made performance of one or more terms conditional upon execution of a formal document;
(c) where the parties do not intend to make a binding contract, unless and until they execute a formal written contract; and
(d) where the parties intend to be immediately bound by the terms on which they have agreed, but expect to make a further contract in substitution for the first, which contains, by consent, additional terms.
[13]See, for example, Sully v Englisch [2022] VSCA 184 at paragraph [62], setting out the undisputed legal principles.
47The first three categories are drawn from the High Court decision of Masters v Cameron. Of these, the first two create a binding contract and the third does not. The fourth is now well recognised as a further example where a binding contract exists.[14] Of course, these categories are not exhaustive of the circumstances in which a binding contract may be formed. In each case, the critical question is whether, having regard to the entirety of the factual matrix, the parties objectively intended to be bound by their agreement. However, they provide a useful taxonomic[15] tool for considering the individual circumstances at play in any particular case.
[14] Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd & Ors (1986) 40 NSWLR 622 at 628E
[15] See the reasons of Matthews AsJ extracted in Sully v Englisch at paragraph [62]
48In the present case, I have concluded that a binding agreement was formed between the parties. I have formed this conclusion, having regard to the following matters.
49First, an agreement may be binding, even though the parties never expressly say so. It is (or should be) common practice that the parties reduce any agreement reached in a mediation to writing.[16] It is (or should be) common practice for a mediator to state at the outset of a mediation whether or not any agreement which has not yet been reduced to writing will be binding. However, the failure to do so does not dictate an answer to whether the agreement reached was binding. As explained by Walker JA in Sully v Englisch:
“…the common practice is better understood as a matter of prudence, directed to avoiding the kind of dispute that has arisen in this case.”[17]
[16]Although in this area of the law, that practice seems not to require a complete written agreement, but rather the signing of a unilateral deed poll by the plaintiff.
[17] At paragraph [88]
50Second, the context for this agreement was a court-ordered mediation attended by the parties, with a view to resolving the dispute in accordance with their obligations under the Civil Procedure Act2010. The formation of a binding agreement was the reason for the existence, and intended purpose, of the mediation.[18]
[18]See BJP1 v Salesian Society (Vic) Inc [2021] NSWSC 241 at paragraphs [76]-[77]; Kwu v State of New South Wales [2024] NSWSC 666 at paragraphs [79]-[80]
51Third, the language used (albeit through the medium of the mediator) was of offer and acceptance.[19]
[19] Sully v Englisch at paragraphs [79]-[80]
52Fourth, the critical terms were agreed, including a dispute-specific term that all insurance policies be at an end. In Sully v Englisch,[20] Walker JA described agreement on key terms as a factor of “considerably greater weight” which resulted in “the starting point for the analysis of the question whether they intended to be immediately bound [being] that it is likely that they did so intend; although of course that is not the end of the inquiry”.
[20] At paragraph [78]; see also Delaney v Delaney [2022] VSCA 48 at paragraph [59]
53Fifth, there had been express contemplation of the execution of a written agreement on “the usual terms” in the correspondence between the plaintiff’s lawyer and the trustee’s lawyer prior to the mediation. The correspondence from the plaintiff’s lawyer refers to an agreement being “amended and agreed” on the day, which suggests that the final format had not been agreed. The correspondence from the trustee’s lawyer asserts that the trustee will utilise its separate, standard deed. This might be thought to indicate an assertion that the terms of the deed were not up for negotiation. However, the trustee’s lawyer subsequently marked the email attaching the trustee’s deed as “[w]ithout prejudice”, suggesting that those terms might be the subject of further negotiation.
54These communications do not clearly point to, or exclude, any of the four categories of case. However, the nature of the correspondence indicates that the parties’ lawyers were repeat players, who well understood the likely form of the resolution of the dispute; and the key issues on which agreement was required at mediation. In this context, the mediation was concluded prior to its scheduled finish time of 2.00pm and without any further discussion of next steps, indicating that the practitioners considered that all critical issues had been resolved.
55Sixth, it is permissible to have regard to post-agreement conduct.[21] However, the question to be answered remains the objective intentions of the parties at the time of the agreement. After the agreement was reached, all parties formally consented to orders being made vacating the trial date. This was a significant step, having regard to the fact that, in accordance with normal County Court listing processes, a re-listed trial date might not be available for another year. It points towards a binding agreement having been reached.
[21] Kwu v State of New South Wales at paragraph [26]
56The other post-agreement communications between the parties are of limited assistance in determining the objective intentions of the parties at the time of the agreement. For example, the email from the trustee’s solicitor attaching the trustee’s deed refers to the “settlement of this matter reached between the parties today at mediation”, which is consistent with a binding agreement being reached. On the other hand, the email from the plaintiff’s solicitor to the Court refers to the matter having settled “in principle”, which may (not must) be viewed as inconsistent with a binding agreement being reached.[22] The subsequent provision of written deeds for execution by the plaintiff, which included terms not expressly discussed at the mediation, such as confidentiality and non-disparagement, might be viewed as inconsistent with the first category, but it is consistent with any of the second, third or fourth categories. Of these, only the third category is non-binding. As said by the Court of Appeal in Nurisvan Investment Ltd & Anor v Anyoption Holdings:[23]
“Thus, the fact that, after entering into such an agreement, the parties might negotiate further additional terms, that were not included in the first agreement, is not necessarily inconsistent with a conclusion that the first agreement constituted a binding contract between them. Ordinarily, in cases falling within the first two categories described by the High Court in Masters v Cameron, it is clearly expected that further negotiations would take place with a view to including additional, and more comprehensive, provisions in the document ultimately to be formalised between the parties.”
[22] Sully v Englisch at paragraphs [93]-[95]
[23] [2017] VSCA 141 at paragraph [107]
57Seventh, I do not accept the plaintiff’s submission that the intention to be bound was conditional upon provision of an interpreter’s affidavit. It was the defendants who raised and requested provision of an interpreter’s affidavit - the trustee’s lawyer prior to the agreement being reached at mediation and the insurer’s lawyer, only afterwards. Requiring confirmation of interpretation serves a purpose of the defendants in providing assurance that the agreement reached was valid and enforceable against the plaintiff. A prudent defendant may well be reluctant to pay over the settlement sum or consent to finalising orders in the absence of such assurance. However, it is not the interpreter’s affidavit which creates the contract (and is dispositive of the question of whether one exists), but the parties’ acts in reaching agreement.
58Eighth, I am conscious that this application is determined on a summary basis in what may be viewed as an exercise of the Court’s discretionary power to enforce a settlement agreement.[24] However, the plaintiff has been given ample opportunity to put on evidence in opposition to the application. There is no significant factual dispute apparent on the affidavits. The application raises matters within the province of this proceeding (the payment of a sum of money and the finalisation of the proceeding). It does not raise questions of discretion such as might be at play where specific performance of an obligation to transfer a property was sought. Accordingly, it is an appropriate case for the exercise of summary jurisdiction.
[24]See Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555; Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396; Barratt v Rees [2014] VSCA 327.
59Finally, although no submissions were made by the plaintiff to this effect, I note for completeness that the evidence falls well short of establishing that the absence of an accredited interpreter at the mediation could give rise to a defence of non est factum.
60In all the circumstances, I have concluded that there was a binding agreement reached between the parties at the mediation. Under the terms of that agreement, the dispute between the parties was resolved on the basis that:
(a) the insurer pay the plaintiff the sum of $185,000;
(b) the plaintiff would cease to be an insured member; and
(c) each party would bear their own costs.
61Given this agreement, the plaintiff has no real prospects of succeeding in this proceeding and summary judgment should be given in favour of the defendants. However, the dismissal of the proceeding will be made conditional upon payment to him (or to his benefit) of the settlement sum of $185,000.
Were the trustee’s deed and the insurer’s deed signed, sealed and delivered by the Plaintiff?
62If the deeds were valid and enforceable as deed polls, they would provide an alternative reason why the plaintiff’s claim should be summarily dismissed.
63The insurer submitted that the insurer’s deed was signed, sealed and delivered (and therefore an enforceable, irrevocable[25] deed poll) upon being signed by the plaintiff, or alternatively upon an executed copy being delivered to the insurer by email.
[25] Burns Philp Hardware Ltd v Howard Chiat Pty Ltd (1986) 8 NSWLR 621 at 639-640
64The trustee submitted that the trustee’s deed was signed, sealed and delivered upon being signed by the plaintiff. It submitted that it did not matter that the trustee’s deed had not been physically delivered to the trustee. It also relied upon the insurer’s deed, which included an obligation upon the plaintiff to consent to the dismissal of the proceeding with no order as to costs.
65The plaintiff submitted that neither the trustee’s deed, nor the insurer’s deed, was signed, sealed and delivered, given:
(a) affixing a signature next to the words “signed, sealed and delivered” is not determinative;
(b) the insurer’s deed required an original to be provided to the insurer and although an emailed copy was provided, the original had not been;
(c) the trustee’s deed was never delivered to the trustee (until required by this application); and
(d) although both defendants required the provision of an interpreter’s affidavit, none had been provided.
66As I have found that the oral agreement reached at mediation is sufficient to justify dismissing the proceeding, it is not strictly necessary for me to resolve this issue. However, for completeness, I will consider the effect of the two deeds, on the assumption that I am wrong in my conclusion that a legally-binding agreement was reached at mediation.
67A curious feature of this case was that none of the legal practitioners were prepared to provide a clear explanation of the legal mechanism by which an agreement binding on all parties was created, if there were not one reached at mediation. The trustee’s deed and insurer’s deed were deed polls and so by their nature binding only on the plaintiff. Both the trustee and the insurer contended that the plaintiff became immediately bound upon signing the trustee’s deed and insurer’s deed, including through the provision of immediate releases. However, the point at which the trustee and insurer became similarly bound, and by what legal mechanism was not clearly articulated.
68Understanding the legal nature of the transaction being entered into by the parties is relevant to the determination of the point at which the trustee’s deed and insurer’s deed were signed, sealed and delivered. There is no invariable rule as to when a deed poll is delivered, even if the words of the deed state that it is thereby “signed, sealed and delivered”. Nor does delivery refer to physical delivery. Rather, delivery turns on whether, as a matter of fact, the plaintiff, by his conduct, objectively intended to be bound by the deed.[26] This intention may arise from (among other things) the signing of the document, words spoken, or the delivery of a deed to another person. In the present case, a part of the circumstances in which the conduct of the plaintiff must be understood is the nature of the arrangement between himself and the defendants.
[26]Monarch Petrolum NL v Citco Australia Petroleum Ltd [1986] WAR 310 at 355-6; applied in Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296 at paragraphs [33]-[34]; Centuria Property Funds Ltd v Thorn Australia Pty Ltd [2022] NSWCA 104 at paragraph [62]; Segboer & Anor v A J Richardson Properties Pty Limited & Anor [2012] NSWCA 253 at paragraphs [51]-[59]. See further the comprehensive review of authorities by Ward CJ in NTT Australia Digital Pty Ltd v Cover Genius Servies Pty Ltd [2020] NSWSC 1378 at paragraphs [109]-[140].
69It is unlikely to have been within the plaintiff’s objective intention to formally execute the deeds unless and until it was accompanied by a concomitant obligation on the defendants to meet their side of the bargain. If there was a legally-binding agreement reached at mediation the key obligations of concern to the plaintiff – the payment of the settlement sum and the agreement that each party bear their own costs – would already be binding. But I am, here, assuming that there was no binding agreement reached at mediation. To put it another way, assuming the agreement reached at mediation was not binding, what further step or steps were required to make that agreement binding, not just on the plaintiff, but on each of the defendants?
70In my view, the nature of the arrangement between the parties is best understood as founded on simple contract. The defendants cannot be liable under a deed which was not ever intended to be executed by them.[27] However, they can be bound in simple contract by obligations that are recorded in a deed. As explained by the Court of Appeal in Nurisvan:
“… in an appropriate case, a party may expressly, or impliedly, accept or attach itself to the obligations contained in the deed so as to be bound in contract by the terms contained in the deed.”[28]
[27] Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397
[28] At paragraph [63]
71It was apparent from the Court of Appeal’s review of the authorities in Nurisvan that critical factors in determining whether a party has done so will be whether the party who had not executed the deed had “attached themselves”[29] to the document, had “acted on it”[30] or “taken the benefit of it”.[31] In the present case, each of the defendants may be viewed as having “attached” themselves to their respective deeds by virtue of the fact that they drafted them and provided them to the plaintiff with a request that they be signed. Accordingly, upon those documents being returned to them, they should be viewed as bound by simple contract to the arrangement described in the deed which they drafted.
[29] At paragraph [57]
[30] At paragraph [59]
[31] At paragraphs [59]-[63]
72In this context, it is unlikely to have been the plaintiff’s intention that the trustee’s deed became binding upon him merely by virtue of him signing it. The trustee’s deed is dated as having been signed by the plaintiff on the day of the mediation. It is not clear at what time that day he signed it. However, an available inference is that it was signed after it was received by the plaintiff’s solicitor at 1.25pm on the day of mediation, but before the insurer’s deed had been received at 3.19pm. This would explain why the trustee’s deed was signed that day, but not the insurer’s deed. But, if this were the case, the plaintiff would not yet have had certainty as to the contents of the insurer’s deed.[32] Again, an available inference is that the plaintiff’s lawyer did not immediately send the signed trustee’s deed to the trustee for this very reason. Given this (and notwithstanding the express words of the trustee’s deed) I am not satisfied, to the standard required for a summary judgment application, that the plaintiff objectively intended to be bound by the trustee’s deed upon signing it.
[32] If one assumes that no legally-binding agreement was reached at mediation.
73As to the insurer’s deed, there are three possibilities:
(a) by at least the time it was emailed to the insurer on 22 April 2024, it was delivered and therefore a binding and irrevocable deed poll;
(b) it would become delivered only when an original of the deed was provided to the insurer;
(c) it would become delivered only when the insurer accepted it as sufficient to give rise to an obligation to pay the settlement sum, which had not been done, as the insurer required it to be re-executed with an interpreter’s affidavit; and
(d) it was part of a package, only signed, sealed and delivered once both the trustee’s deed and the insurer’s deed could be viewed as signed, sealed and delivered.
74I find that the fourth possibility is not consistent with the objective intentions of any of the parties in the circumstances of this case. A signed deed may be held in “escrow” pending fulfilment of a condition, such as execution by another party. However, the unconditional delivery of a deed poll to the very person requesting it, is inconsistent with such an intention.[33] Further, the conduct of the trustee and insurer, acquiesced by the plaintiff’s lawyer in her responses, in not copying each other into their communications with the plaintiff concerning the deeds, is not consistent with this being the nature of the arrangement between the parties. The contracts that they were proposing, by emailing their deeds separately, were not a package deal.
[33]Monarch Petroleum v Citco Australia Petroleum Ltd at 356; Mirzikinian v Waterhouse Pty Ltd at [39]-[53]; Segboer & Anor v A J Richardson Properties Pty Limited & Anor at [72]-[75]
75I find that the third possibility is not consistent with the intentions of the plaintiff, as demonstrated by his conduct. The insurer’s lawyer had not, before receiving the signed insurer’s deed, made any request for the provision of an interpreter’s deed. The first such request came at 5.00pm on the day that the plaintiff’s lawyer provided the signed insurer’s deed to the insurer’s lawyer. The critical question is not what the insurer intended, but what the plaintiff, by his conduct, intended. An after-the-fact request for provision of an interpreter’s affidavit cannot alter that intention. It cannot undo a completed delivery.
76In relation to the second possibility, delivery does not mean physical delivery, but rather an intention to be bound, demonstrated by conduct. The mere inclusion of a requirement to deliver the original deed to the insurer in order to receive payment, without more, does not give rise to an inference that the plaintiff was not bound until he did so.
77Which leaves the first possibility. The following relevant circumstances existed:
(a) on 13 April 2024, five days after it was provided, the plaintiff chose to sign the insurer’s deed;
(b) the plaintiff’s signature was witnessed by a “trusted friend”;[34]
(c) the insurer’s deed is plainly a formal legal document, containing an entire agreement clause and an acknowledgment that it is entered into voluntarily by the plaintiff;
(d) the insurer’s deed places an obligation upon the plaintiff to provide the original of the deed to it, but does not state that the plaintiff’s obligations are conditional upon provision of the original;
(e) the execution clause bears the words “[s]igned sealed and delivered”;
(f) the plaintiff was legally represented at the time; and
(g) on 22 Aprill 2024, some nine days after it was signed, the plaintiff’s lawyer sent the signed insurer’s deed to the insurer’s lawyer under cover of a letter which stated, “[i]n accordance with the terms of the Deed, we look forward to receipt of the settlement sum within 28 days”.
[34] See email from plaintiff’s lawyer to insurer’s lawyer dated 22 April 2024.
78These circumstances provide powerful evidence that the plaintiff intended, by his conduct, to be bound by the deed. Nothing in the plaintiff’s conduct, or surrounding circumstances, serves to rebut that evidence.
79The present case is quite different from Burns Philp Hardware Ltd.In that case, Priestley JA, with whom Glass JA agreed, held that two unsolicited deeds had not been “delivered” when sent by a lessor to the lessee, because they had not been accepted by the lessee as having legal effect. That case concerned a clever, but ultimately unsuccessful, attempt by the lessor to increase the annual market rent of a premises prior to a rent review by unilaterally and irrevocably waiving a restriction in the lease on the use of the premises.
80It is also quite different from cases concerning gifts or unilateral transfers of assets.
81I find that the plaintiff’s intention, objectively ascertained from the circumstances, was to be bound by the insurer’s deed by at least the time that it was emailed to the insurer.
82Accordingly, I find that, upon payment of the settlement sum, the plaintiff’s claim against the insurer will no longer have any real prospects of success. I also find that the plaintiff was bound by the terms of the insurer’s deed to agree to orders dismissing the proceeding, with no order as to costs within seven days of receipt of that settlement sum. As the proceeding is defined as the whole of the claim by his statement of claim in this proceeding, this inures to the benefit not only of the insurer, but also of the trustee.
Conclusion
83I have found that the defendants are entitled to summary judgment. However, the path to that decision was not without legal complexity. It relies primarily on a finding by me that a binding agreement was reached at mediation, without the necessity for the plaintiff to execute a deed of release. The impact of this finding is that, not just the plaintiff, but also the trustee and insurer, were immediately bound to this agreement. This is notwithstanding the fact that, at the time, no formal deed of release had yet been executed; and there had been no agreement by the plaintiff to the non-disparagement, confidentiality or broad releases contained in those deeds.
84Although I have not yet decided the question of costs, presumably the plaintiff is now facing the prospect that he will need to meet his own costs of this application, as well as the costs of both the insurer and trustee. This is out of a settlement sum of $185,000, which was likely already reduced by the costs of his former lawyers. No doubt the insurer and trustee will also be out-of-pocket.
85I remind the reader of the opening words of these reasons for decision.
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