Karbowiak v Mitolo

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
KARBOWIAK & ANOR v MITOLO & ANOR
[2025] SASC 25
Judgment of the Honourable Justice Stanley
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS - OFFER OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS - MATTERS NOT GIVING RISE TO BINDING CONTRACT - VAGUENESS AND UNCERTAINTY
SUCCESSION - FAMILY PROVISION - PROCEDURE - ORDERS AND OTHER PROCEDURAL MATTERS - OFFER OF COMPROMISE
This is an application by the second respondent seeking inter alia that the Court make a declaration that the first applicant and second respondent reached a binding compromise agreement on 4 April 2024 by the first applicant filing an Acceptance of Formal Offer on 4 April 2024 in response to the Formal Offer filed by the second respondent on 22 March 2024.
On 31 August 2022 the applicants brought a claim for provision from the estate of Maurizio Mimmo Mitolo (deceased) pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (IFP Act). The applicants also sought a declaration pursuant to s11B of the Family Relationships Act 1975 (SA) (FRA) that the first applicant was the domestic partner of Mr Mitolo at the date of his death on 18 December 2019 or some earlier date to be determined by the Court.
On 28 November 2023 the Court ordered that the application for a declaration of domestic partnership be heard first as a separate trial to the applications under the IFP Act. It was subsequently set down for trial on 15 April 2024 with a time estimate of nine days. Prior to trial, the second respondent made an offer to consent to judgment. The second respondent would agree to the Court making a declaration that the first applicant and the deceased were in a domestic partnership as at 31 December 2012. This offer was accepted by the first applicant. The separate trial was vacated and the parties tasked with satisfying the Court that there was an evidentiary basis to support the making of such a declaration. The parties could not agree on which evidence could be put before the Court for this purpose. The first applicant contends, that by her consent to judgment, the second respondent has made admissions of all facts necessary or appropriate to the making of that declaration and it is open to the Court to make the declaration on this basis.
The Court had to determine whether as a result of the acceptance of the offer of compromise a contract exists between the parties; whether the parties are under a duty to do all things necessary to enable the Court to make the declaration sought; and whether, the second respondent’s filed offer once accepted, constituted implied admissions by her as to the existence of facts necessary to the granting of the declaration.
Held:
1. Where an offer pursuant to UCR 132 is expressed to be a judgment offer in contrast to a contract offer, that is objective evidence of the intention of the offeror that a contract not be brought into existence.
2. The filing and acceptance of the offer pursuant UCR 132 did not constitute the making of a contract between the first applicant and second respondent because it was void for uncertainty.
3. In the absence of a valid contract, there is no duty upon the parties to do all things necessary to enable the Court to grant the declaration.
4. The second respondent, has not, by her offer of 22 March 2024, made implied admissions as to the evidentiary basis for the making of the declaration.
5. Absent the necessary evidentiary foundation, it is not open to the Court to make a declaration pursuant to s11B of the Family Relationships Act 1975 that the first applicant and the deceased were in a domestic partnership as at 31 December 2012.

Inheritance (Family Provision) Act 1972 (SA) s 7; Family Relationships Act 1975 (SA) s 11B; Uniform Civil Rules 2020 (SA) r 132, referred to.
Williams v Powell [1894] WN 141; Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960; R v Bong [2013] SASC 39; Rule Chambers Pty Ltd v Badge Constructions (SA) Pty Ltd [2009] SASC 70; Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; Jackson v Abram (2015) 124 SASR 339; Butt v McDonald (1896) 7 QLJ 68; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, applied.
Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, distinguished.

KARBOWIAK & ANOR v MITOLO & ANOR
[2025] SASC 25
STANLEY J:
Introduction

The applicants have brought a claim for provision from the estate of Maurizio Mimmo Mitolo (deceased) pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA) (IFP Act). To that end they sought a declaration pursuant to s 11B of the Family Relationships Act 1975 (SA) (FRA) that the first applicant was the domestic partner of Mr Mitolo at the date of his death on 18 December 2019 or some earlier date to be determined by the Court. The respondents oppose the Court making the orders sought.
The Court has listed for argument the discrete question of whether there exists an enforceable agreement between the first applicant and second respondent enshrined in consent orders both parties ask the Court to make. The second applicant and first respondent were excused from this argument. The parties seek, by way of a compromise agreement, a declaration as to the existence of a domestic partnership within the meaning of s11B of the FRA between the deceased and the first applicant on and before 31 December 2012 but not thereafter.
The difficulty that exists is it has become apparent since the parties agreed the terms of the declaration they seek that they do not agree upon the facts or evidence that would support the Court making the declaration in the exercise of its jurisdiction pursuant to the FRA. The second respondent has brought an interlocutory application seeking various orders. The Court heard argument on the question of whether it should make a declaration that the first applicant and the second respondent reached a binding compromise agreement on 4 April 2024 by the first applicant filing an Acceptance of Formal Offer[1] on that date in response to the Formal Offer filed by the second respondent[2] on 22 March 2024 that reflected the terms of the compromise agreement. This offer was expressed to be an open offer pursuant to UCR 132.3(2).
[1] FDN 83.
[2] FDN 80.
The principle underpinning both parties’ position is that a court will not grant a declaration merely on the basis of the consent of the parties, in the absence of actual evidence supporting the making of the declaration.[3]
[3] Williams v Powell [1894] WN 141 at 141; Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd [2009] FCA 960 at [10]-[18]; R v Bong [2013] SASC 39 at [7].
The second respondents’ position is that the parties have reached a concluded contract. She contends that the Court should make the declaration sought and the parties should then, in accordance with the principle in Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd,[4] (Secured Income) cooperate to endeavour to perform the contract by agreeing the relevant evidence and facts necessary to support the terms of the declaration sought. If that agreement cannot be achieved despite the reasonable cooperation of the parties, the Court should resolve the matter by conducting a disputed facts hearing.
[4] (1979) 144 CLR 596 at 607.
The first applicant asks the Court to make the declaration sought on the basis that the second respondent in making an offer to consent to the declaration, which was accepted by the first applicant, impliedly admitted all the facts relied on by the first applicant in the affidavit material and Tender Book documents they put before the Court to support the declaration. If that is not accepted the first applicant submits that there is no agreement between the parties which would permit the Court to make the declaration sought. In that event she submits the putative contract is void for uncertainty. The parties were not ad idem. She submits the basis for making the declaration sought did not come into existence, namely, agreement as to the facts necessary for granting the declaration.
History of the matter
On 31 August 2022, the applicants issued an originating application seeking the following orders:
1.Pursuant to s 11B of the Family Relationships Act 1975 (SA), a declaration that the first applicant was, as at 18 December 2019 or some earlier date to be determined by the Court, the domestic partner of the deceased Maurizio Mitolo otherwise Maurizio Mimmo Mitolo otherwise Mimmo Mitolo.
2.Pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA), such provision as the Court deems fit being made out of the estate of Maurizio Mitolo otherwise Maurizio Mimmo Mitolo otherwise Mimmo Mitolo, late of unit 2, 18-20 Frank Street, Newton 5074, South Australia, for the maintenance, education and advancement in life of the applicants.
3.That the applicants’ costs of this application be paid out of the estate of the deceased.
4. Such further or other orders as this Court may deem fit.
On 28 November 2023, the Court ordered, inter alia, that the first applicant’s application for a declaration of domestic partnership under the FRA be heard as a separate trial to the applications under the IFP Act.
Thereafter, the separate trial was listed for 15 April 2024 with a time estimate of nine days. The first respondent was excused from attending the separate trial.
On 22 March 2024, the second respondent filed a formal offer (“offer”).[5] The offer offered to consent to judgment in order to resolve the separate trial. The relevant orders proposed:
1.The Court declares that on 31 December 2012, Maurizio Mimmo Mitolo (“deceased”) and Agata Brygida Karbowiak were domestic partners one of the other within the meaning of s 11B of the Family Relationships Act 1975 (“FRA”);
2.Paragraph 1 of the originating application (FDN 1) filed in this action on 31 August 2022 is otherwise dismissed;
3.The offer is made on the terms that the judgment include the following term as to costs [namely] that the offerer will submit to any order the Court may make in the exercise of its discretion.
[5] FDN 80, the offer was sealed by the registry on 25 March 2024.
The offer was to expire on 5 April 2024. On 4 April 2024, the first applicant accepted the offer by filing a document entitled “Acceptance of Formal Offer” (“acceptance of offer”).[6] The acceptance of offer did not contain any additional clauses or conditions to the offer. On 15 April 2024[7] the first applicant filed a document identifying the admissions said to arise from the applicants’ acceptance on 4 April 2024 of the filed offer of 22 March 2024. Those admissions were said to be contained in various affidavits and documents in the Tender Book.[8] There is no statement of agreed facts.
[6]    FDN 83.
[7]    The notice of evidence to be relied upon by the applicants was filed on Court SA on 12 April 2024 at 4:46 p.m. after the Registry had closed. The Registry accepted the filing of the notice on 15 April 2024.
[8]    FDN 2, FDN 3, FDN 61, FDN 62, FDN 63, FDN 64 and FDN 81 and documents 13, 17, 57, 58, 60 and 71-75 in the Tender Book. The individual paragraphs of those affidavits are identified in FDN 87 (Evidence to be relied upon by the applicants at the hearing on 15 April 2024).
The issues on the current application (FDN 93)
The application raises three issues;
(i)Did the offer and acceptance in accordance with UCR 132 bring a contract between the parties into existence?
(ii)Does the principle in Secured Income apply such that the parties are under a duty to do all things necessary to enable the Court to grant the declarations?
(iii)Did the second respondent’s filed offer once accepted constitute implied admissions as to the existence of facts necessary to the granting of the declaration?
Did the offer and acceptance in accordance with UCR 132 bring a contract between the parties into existence?
The second respondent’s argument proceeds on the basis that the consent orders are a concluded contract between the parties. The second respondent submits that the acceptance of the offer by the first applicant constitutes a binding contract between them.[9] That contract was allegedly concluded and complete by the filing of the notice of acceptance.
[9] Duncan and Weller Pty Ltd v Mendelson & Ors [1989] VR 386 at 400; cited with approval in Jackson v Abram (2015) 124 SASR 339.
It is not in dispute that the acceptance of an offer in accordance with UCR 132 can be the basis for the bringing into existence of a contract between the parties.[10] The issue is whether it did so in this case.
[10] Rule Chambers Pty Ltd v Badge Constructions (SA) Pty Ltd [2009] SASC 70 at [23].
The first applicant denies that there is any contract between the parties as a result of the entry into the consent judgment pursuant to UCR 132. She contends that she only accepted the offer in accordance with the scheme of the rules for the resolution of litigation before the Court. They deny the existence of an objective intention to enter into a contractual relationship. They further deny the existence of any consideration for the putative contract.
The UCRs fall to be construed in accordance with their text, context and purpose.[11]
[11] Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at 83 [96].
At the time the offer was made, UCR 132.4 included:[12]
[12] On 1 January 2025 rule 132.4(1) was amended to add a subsection (c) in terms of both a judgment to be entered upon acceptance and a contract to come into existence upon acceptance including terms for the disposition of the proceeding (a hybrid offer).
(1) A party (the offeror) may file a document making a formal offer to another party (the offeree) in the prescribed form to resolve a proceeding or any part of a proceeding (formal offer)—
(a)     in terms of a judgment to be entered upon acceptance (a judgment offer); or
(b)     in terms of a contract to come into existence upon acceptance including terms for the disposition of the proceeding (a contract offer).
(2) A formal offer must be served on each other party to the proceeding as soon as practicable after being filed.
…
(4) A formal offer may include any term capable of being incorporated—
(a)     in the case of a judgment offer—in a judgment; or
(b)     in the case of a contract offer—in a contract.
…
UCR 132.8 provides:
(1) When a judgment offer is accepted, the Registrar may—
(a) enter judgment in terms reflecting the accepted judgment offer; or
(b) require the offeror to file a draft judgment in the prescribed form reflecting the terms of the accepted offer, and may enter judgment on the parties communicating their consent to the terms of the draft judgment under rule 133.1.
(2) When a contract offer is accepted, the parties must apply to the Court for appropriate orders within 14 days of acceptance.
It can be seen that at the time the offer was made and accepted the scheme of UCR 132.4 contemplates two kinds of formal offers. The first is a judgment offer which is an offer to resolve a proceeding or any part of a proceeding in terms of a judgment to be entered upon acceptance of the offer. The second is a contract offer which is an offer to resolve a proceeding or any part of a proceeding in terms of a contract to come into existence upon acceptance including terms for the disposition of the proceeding.
In this case the formal offer was expressed to be a judgment offer not a contract offer. Where, as here, the offer is expressed to be a judgment offer in contrast to a contract offer that is objective evidence of the intention of the offeror that a contract not be brought into existence. In the circumstances I am satisfied that there was not an objective intention on the parties to enter into a contract.
In any event, a contract was not brought into existence by the offer and acceptance pursuant to UCR 132 because it was void for uncertainty.
In Jackson v Abram[13] the Full Court considered the nature of offers under the previous rules. The question in Jackson was whether the terms of an offer made during proceedings was reasonably certain so as to be capable of acceptance by the offeree. In my reasons with which Peek and Lovell JJ agreed, I held:
In Duncan & Weller Pty Ltd v Mendelson Kaye J, with whom Southwell and Hampel JJ agreed, held that a filed offer pursuant to the relevant Victorian rules of court, if accepted, would constitute a binding contract between the parties. Like any contract, to be binding its terms are required to be reasonably certain. To similar effect is the judgment of the Supreme Court of New South Wales in Associated Confectionery (Australia) Ltd v Mineral and Chemical Traders Pty Ltd where Giles J held that a filed offer of a specific sum inclusive of costs could not be treated as an offer of compromise to which effect could be given because it was not possible to determine whether or not the result of the proceedings were more favourable or less favourable than the offer as it was not known how much the specific sum was or should be attributed to costs.
[Citations omitted].
[13] [2015] SASCFC 175 at [118], (2015) 124 SASR 339 at 342-343.
The parties are, and were, not, ad idem as at 4 April 2024 when the first applicant filed their notice of acceptance or, for that matter, subsequently. For the purpose of the putative contract it was essential that agreement was reached as to the evidence of the facts necessary for the making of the declarations sought.
For these reasons the second respondent’s submission that the filing and acceptance of the offer constituted the making of a contract between the parties cannot be accepted.
In these circumstances it is unnecessary to consider whether there was consideration.
Does the principle in Secured Income apply such that the parties are under a duty to do all things necessary to enable the Court to grant the declaration?
The second respondent contends that by reason of the acceptance of the filed offer the parties are under a duty to do all things reasonably necessary for the performance of that contract. In particular they must use their best endeavours to agree the evidence which would justify the Court making the declarations sought. The second respondent relies upon the principle in Secured Income.
In Secured Income Mason J approved the following statement of principle in Butt v McDonald[14] by Griffith CJ:[15]
It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.
[14] (1896) 7 QLJ 68 at 70-71.
[15] (1979) 144 CLR 596 at 607.
Mason J went on to observe:[16]
It is easy to imply a duty to cooperate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party’s obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to cooperate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends … not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself.
[16] (1979) 144 CLR 596 at 607-608.

The reference to “necessary” is an important limitation on the scope of the implied term. While it is sometimes held that a term requiring cooperation is implied into all commercial contracts[17] the question arises only if cooperation is necessarily an incident of the contract.[18]
[17] Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 187.
[18] JW Carter, Contract Law in Australia (JW Carter Publishing, 8^th ed, 2023 at [28-09].
Notwithstanding the agreement between the parties as to the making of consent orders, the second respondent accepts that more is required before the Court could make the declarations sought. She submits that as there is a binding agreement between the parties, the principle in Secured Income applies and that the parties are obliged to do all things necessary to enable the other party to have the benefit of the contract. In this case the second respondent submits that the parties should confer and endeavour to reach agreement on the factual basis set out in the evidence for the grant of the declarations. In the event that notwithstanding sincere endeavours of both parties to reach such an agreement they are unable to do so, the Court could conduct a disputed facts hearing in order to find whether the evidence supports the making of the declarations sought. It is submitted this all follows from the implied duty of cooperation in performance. I do not accept this submission for two reasons.
First, because the duty to cooperate in the performance of the contract necessarily depends upon the existence of a concluded contract. The duty only arises once the contract is in existence. That is the necessary anterior condition. In this case, for the reasons explained, that did not occur as a result of the rules based offer and acceptance. In the absence of a concluded contract there was no room to imply the duty the second respondent sought to rely on.
Second, in any event, even if the Court found there was an intention to enter into a contractual relationship there is another reason why a contract was not brought into existence. In this case, for the fulfilment of the bargain allegedly struck between the parties, the evidence supporting the making of the declaration sought had to be agreed between the parties. It certainly had not occurred by 4 April 2024 when the second respondent submits the contract was concluded. The failure to do so is not the result of a failure to cooperate in the doing of acts which are necessary to the performance of the contract. The problem is not a failure by the first applicant to cooperate in the performance of a concluded contract but the failure to have agreed essential terms. This is not a case of non-performance by the first applicant of agreed terms of a contract, but a failure to agree specific terms to which it appears the parties had not adverted their minds at the time the offer to consent was agreed. The first applicant and the second respondent had not agreed upon the evidence to be put before the Court that would justify the Court making the declarations. Such agreement was essential to the entry into the contract. The implied duty of cooperation cannot be applied to coerce a party into agreeing essential terms of a contract that the party is not obliged to perform because performance only arises once a valid contract has been entered into. That has not occurred in this case. The putative contract being void for uncertainty, there was no agreement as to the evidence which justified the agreed order the parties asked the Court to make. As a contract was not brought into existence there is no room for the principle in Secured Income to operate.
Did the second respondent’s filed offer, once accepted, constitute implied admissions as to the existence of facts necessary to the granting of the declaration?
The first applicant submits that notwithstanding that there is no contract between them and the second respondent by way of their offer, there is an implied admission by the second respondent of the evidence necessary for the making of the declaration sought by the parties set out in the evidence schedule of 15 April 2024. If that is not accepted the first applicant submits the failure to agree the facts necessary to make the declaration means the resolution created by the acceptance of the filed offer should not be implemented.
The first applicant, relying on reasons of the High Court in Thomson Australia Holdings Pty Ltd v Trade Practices Commission,[19] contends that the Court can make the consent orders on the basis that, by offering to consent to judgment, which offer was accepted by the first applicant, the second respondent admitted all facts necessary or appropriate to the granting of the declaration. The first applicant submits that the facts necessary or appropriate to the granting of the declaration are the facts referred to in the evidence schedule[20] which she submits are admitted facts necessary to establish the jurisdiction of the Court to make the agreed declaration. However, the first applicant’s submission assumes that the second respondent has not only expressly agreed to the making of the consent orders, but has impliedly admitted the facts subsequently identified in the first applicant’s evidence schedule.[21] For the purposes of the first applicant’s argument, the admissions must be implied as they plainly have not been expressly agreed by the second respondent. On the contrary, far from being agreed as necessary to making the declaration sought, the second respondent has put forward their own schedule of evidence which differs from the evidence sought to be relied on by the first applicant in their evidence schedule.
[19] (1981) 148 CLR 150 at 163-164.
[20] FDN 87.
[21] FDN 87.
I do not accept the first applicant’s submission. In my view there is no basis upon which the Court should accept that the second respondent has impliedly admitted that the evidentiary basis for the making of the consent orders is the evidence schedule. This was produced by the first applicant subsequent to them filing and serving the acceptance of offer. The implied admissions are inconsistent with the evidence the second respondent expressly seeks to rely on for the declaration. The first applicant’s schedule was not produced until 15 April 2024, although the evidence relied on was previously set out in various affidavits and the tender book filed by the applicants. The absence of express agreement that the evidence identified in the evidence schedule justified the making by the Court of the declarations sought at that time demonstrates why the Court should not imply an admission of that nature at 4 April 2024 when the offer was accepted by the first applicant. The first applicant conspicuously failed to assert at the time they accepted the filed offer that they were accepting the offer on the basis of the facts subsequently identified in the evidence schedule of 15 April 2024. In my view, the principle in Thomson is readily distinguishable. The making of consent orders, in Thomson was based on the consent of the other parties to the making of those orders on the basis that the consent involved an admission of all facts necessary or appropriate to the granting of the consent orders. Necessarily the application of that principle required the identification and acceptance of all the necessary facts by all the parties in that case. Plainly, that has not occurred in this case. What facts are necessary or appropriate are not only not admitted, but are a matter of vigorous controversy. Accordingly, I do not accept the first applicant’s submission that there was an implied admission by the second respondent that the declaration sought was justified on the basis of the facts set out in the first applicant’s evidence schedule.
Accordingly, I accept the first applicant’s submission that there cannot be said to be an agreement which gave rise to a contract. In these circumstances a duty to cooperate did not arise.
Conclusion
For these reasons I would not make the orders sought by the respondent in FDN 93.

[2025] SASC 25

7 March 2025