Lloyd v Dean

[1991] HCATrans 301

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P19 of 1991

B e t w e e n -

KEITH ALFRED LLOYD

Applicant

and

MARLENE FRANCES DEAN and WESTHAM HOLDINGS PTY LTD

Respondents

Application for special leave

to appeal

MASON CJ TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 1991, AT 4.25 PM

Copyright in the High Court of Australia

Lloyd 1 24/10/91

MR R.H.B. PRINGLE, QC:  May it please Your Honours, I appear

for the applicant with my learned friend,

MR C.R. CLARK. (instructed by Clark & Co)

MR C.L. ZELESTIS, QC:  May it please Your Honours, with my

learned friend, MR M.T. RITTER, I appear for the

respondent. (instructed by Dwyer Durack)

MASON CJ: Yes, Mr Pringle.

MR PRINGLE:  May it please Your Honours, this application

concerns a case involving questions as to the true

scope and meaning of the concepts of substance,

form and intention in relation to deeds, and of the

proper construction of section 9(4) of the Property

Law Act in the light of those concepts. There is

also a further point, Your Honours, concerning a

question whether three deeds which plainly were

deeds, which were executed contemporaneously, with

the instrument in question, should have been taken

into account as having a bearing on the intention

with which the instrument in question was executed.

In that respect the Full Court decided that it

would look only at the instrument in question.

Now, I do not know to what extent Your Honours

have been able to read the papers in the - - -

MASON CJ:  We have read the papers, and the question seems

to be whether this document purports to be a deed.

MR PRINGLE:  Yes.

MASON CJ: That is the issue?

MR PRINGLE:  Yes. Well, that, at the end of the day, is the

final question to be answered.

GAUDRON J:  By reference to what considerations should it be

answered, in your submission?

MR PRINGLE: Well, what we say is that there is a large gulf

between the trial judge, Mr Justice Kennedy, and
the judges sitting in the Full Court, as to
fundamental matters, and I would like to deal
briefly with those fundamental matters before

leaving the final question to Your Honours.

The first fundamental point, we respectfully

submit, is what is the meaning of the substantial

requirement of a deed, and there is a very helpful

case on that point. It is the case of Manton v

Parabolic, and Your Honours should have a second

volume which is called, Appellant's List of

Authorities.

MASON CJ: Yes, we have that.

Lloyd 2 24/10/91

MR PRINGLE:  What it contains, Your Honours, is first of all

statutes which have comparable sections to

section 9, then three cases, items 7, 8 and 9 and

finally, Your Honours, extracts from two

dictionaries. The case, Your Honours, starts at

page 32, and I wonder if I can simply take

Your Honours, first of all, to page 33 just to show

you what the case was about, and there are two

little passages in the headnote which are helpful

in that respect. There is firstly the passage of

letters B to Con page 33 which says that:

Securities for land part of which was

freehold land subject to the Real Property Act

1900 and part of which was conditional

leasehold land subject to the Crown Lands

Consolidation Act 1913, were dealt with as one

transaction with consideration for both

mortgages being the same. The mortgage of the

conditional leasehold was effectuated by

executing and lodging a statutory form of

transfer by way of mortgage. The mortgagee

purported to exercise a power of sale -

under that mortgage. And if Your Honours would

then go down to the foot of the page, it was held:

The statutory form of transfer by way of

mortgage under the Crown Lands Consolidation

Act 1913, s 259, having the force of a deed

when duly lodged, the statutory power of

sale ..... applied.

In other words it was a deed, and the particular

points on which we rely in relation to this case,

Your Honours, will be seen between letters C and D, which is firstly that:

A deed is a document whereby a person

does the most solemn act possible with respect

to its subject matter provided the document

complies with the statutory requirements for

formal validity.

And then:

A document which is sealed is not

necessarily a deed unless it complies with the

substantial requirements of a deed.

Now, I remind Your Honours that the instrument in

question contains in clauses 1 and 4 an agreement

on the part of the deceased to transfer when

required property referred to in the document.	In
other words it was a voluntary agreement to transfer. But it was an agreement to transfer in
the sense that an agreement releases an agreement

Lloyd 3 24/10/91

rather than the subject-matter of a demise.	Now,
there are two little passages I would ask
Your Honours to look at.	Can I tell you that on

page 35 His Honour simply said that there was not

to be found any clear statement in the authorities

as to substantial requirements as opposed to formal requirements of a deed, and His Honour then said he

would proceed to consider that matter; and on
page 36 going, Your Honours, by the pagination of
the book - Your Honours will see the page numbers

on the top - - -

MASON CJ: Yes.

MR PRINGLE:	Page 36, Your Honours, letter F, after going through the ancient history of livery of seisin and
so on, His Honour said:

The word "factum" of course, came from

the supine form of the Latin verb "to do" or

"to act", and the factum of deed was the

memorial of the most solemn act that a person

could do with respect to his land. In truth,

whilst originally the parchment was mere

evidence of the actual livery of seisin that

had taken place on the site, in time it went

through the stages of being conclusive

evidence of that fact to the stage where the

factum itself became the medium by which the

conveyance was effected. Thus the substantial

requirement of a deed is that it be intended

by the party who does it to be the most solemn
indication to the community that he really

means to do what he is doing. That solemn

indication is given by sealing a deed which

witnesses to what has been done. Even today,

these documents say: "In witness whereof I

have hereunto affixed by hand and seal."

Now, the reference to the solemn indication was

quoted by Mr Justice Ipp with whom the

Chief Justice agreed, as being an important matter

to be included in his reasons, but what was not
included was the next sentence:

So then, a deed is the most solemn act that a person can perform with respect to a

particular property or contract involved, and

the form of that deed is as laid down by the

law from time to time.

And what that means becomes quite clear, in our

submission, from a few further little passages. If

you take letter B, Your Honours, the two sentences

there:

With Torrens System land -

Lloyd 4 24/10/91

with which we are concerned in this case -

the solemn act required is different. It is the proper completion of the prescribed form and the registration of that dealing on the

Register.

Your Honours, there is a reference by the learned

judge to another case which is helpful, at

letter G, that is Brown v Turner, which deals with

a lease, where His Honour said:

it had previously been held that a "memorandum

of agreement" which contained words of present

demise was a deed, Stout CJ pointing out:

" ... The mere fact that it is called a

memorandum of agreement does not make it less

a deed and the document does not purport to be

an agreement that has to be completed by some

other formal document."

Now, our case is one in which the agreement had to be completed by a transfer under the Transfer of

Land Act. May I take you straight to the

provisions which deal with that. They are in,

Your Honour, the same volume, but if you could keep

your place at page 37 I will come back to one or

two more small points, but if you go to pages 3a

and 3b, immediately after 3, there are two

sentences which I would like to read to you. The first is in the middle of page 3a, section 82(1), just the beginning of it:

The proprietor of land or of a lease

mortgage or charge or of any estate right or

interest therein respectively may transfer the

same by a transfer in one of the forms in the

Seventh Schedule hereto.

And then, Your Honours, two pages further on, 3c,

again I will read just the beginning of the

section, section 85:

Every transfer or other instrument shall

be deemed of the same efficacy as if under

seal; and when signed by the proprietor and

registered shall be aa valid and effectual to

all intents and purposes for conveying passing

or conferring the estates interests or rights
expressed to be thereby transferred leased or
created respectively as a deed duly executed

and acknowledged - - -

TOOHEY J:	I am sorry, Mr Pringle, what is the relevance of the Transfer of Land Act?
Lloyd	24/10/91

MR PRINGLE: Well, Your Honours, in this case, to complete

the transaction, one would have had to have a

transfer.

TOOHEY J: Unquestionably, but if there had been a transfer

there would not have been any argument, I suppose.

MR PRINGLE: Quite, but the point about Manton v Parabolic

is that the argument was - the argument concerned a

question whether the transfer was a deed, and the

reasoning was that it was a deed because it was the

last step, and what we are talking about in this

case in the first step, which means it is a quite

different case from the classes of case, in all the

cases in fact, before the Court, where there were

held to be deeds. I cannot recall a single

incidence of all the number of cases that are cited by all four judges in this case - I cannot think of

one where a document was held to be a deed if it

was the first step in a case where you would have

an agreement for something else to happen.

TOOHEY J: Well yes, I think I follow that. I am still at a

bit of a loss to understand the relevance of the Transfer of Land Act. What the Transfer of Land Act does is give to an instrument which is not a

deed ordinarily, and does not purport to be a deed,

the effect of a deed.

MR PRINGLE:  Yes.

TOOHEY J: But that is not the question we are looking at

here.

MR PRINGLE:  No, but what is important, in my respectful

submission, is that this case supports the

proposition that the second step, that is when the

transfer is executed, it becomes a deed. When it

is executed and registered it becomes a deed.

MASON CJ: But that does not tell us anything about this

case.

MR PRINGLE: All it tells one about this document,

Your Honours, is that this case, in my respectful

submission, bearing in mind what is said in the

Transfer of Land Act, which makes the factual

background similar to Manton v Parabolic, is that

it is a two-step case and that the second step is

the same step as dealt with in Manton v Parabolic,

but, Your Honours, perhaps if I could simply take

you to two further passages in Manton v Parabolic.

If Your Honours would look at page 38, letter C,

you will see that what His Honour says is:

The history of solemn deeds and the

authorities above referred to make it plain

Lloyd 6 24/10/91

that the essential element of a deed is that

it be the most solemn act that a person can

perform with respect to a particular piece off
property or other right. It follows

accordingly, in my view, that unless

disqualified by requirements as to form,

transfer T430042 is a deed.

And then, at the foot of the page, His Honour said

this:

Accordingly, the inquiry as to whether

transfer T430042 is a deed must centre upon

whether this document is the most solemn way

of assuring the interest being passed from the

defendant to the plaintiff.

And what we say here is that the instrument in

question in this case does not purport to pass any

interest. It agrees voluntarily to do so at some

future date, on demand by the donee.

TOOHEY J:  Mr Pringle, do you seek to uphold the judgment of

Mr Justice Kennedy?

MR PRINGLE:  Yes.

TOOHEY J: Well, I imagined you did, but none of your

arguments really seem to derive from that judgment.

MR PRINGLE:  Yes, Your Honours. Perhaps I could then take

you to what His Honour thought and after that to

our criticisms of the Full Court. So far as

His Honour is concerned, could Your Honours look first at page 6, and Your Honours will see at

line 17 a reference to Norton on Deeds, and the

quotation is:

"A deed is a writing -

and then -

or property passes, or an obligation binding	(iii) delivered, whereby an interest, right,
on some person is created, or which is in
affirmance of some act whereby an interest,
right, or property has passed."

And then His Honour refers among others to Manton v

Parabolic in that respect. From there,

Your Honours, I would invite your attention to the

next page, 7, and in particular to the passage

starting at line 21:

The critical question, in my opinion, comes

down to whether the document is expressed or

purports to be an indenture or deed in terms

Lloyd 7 24/10/91

of s.9(4). It is certainly not expressed to

be, nor is it, the indenture of the deceased

or an agreement under his seal. Nor does it

purport to be a document executed under the

deceased's seal. Notwithstanding the argument

advanced by Ms Leslie, before considering this

critical question, it is unnecessary, in my

view, as a separate exercise, to -

consider, I think, is the word omitted -

whether the document is in substance a deed.

Sub-section (4) provides no justification for

such an exercise.

That passage has been criticized both in written

submissions by my learned friend, and also by

Mr Justice Ipp, but I would ask you to turn now to

page 9 - - -

TOOHEY J: Just before you do, Mr Pringle, may I ask you

this? Do you seek to support the judgment below on

the basis that the document was expressed to be a

deed, or purported to be a deed, or both?

MR PRINGLE:  No. I say that the document was not a deed

because it neither looked like a deed and nor was

it in substance a deed.

TOOHEY J:  I am sorry, I should have put it to you in the negative.

MR PRINGLE: Yes, but I understand the question,

Your Honour.

TOOHEY J:  You asserted it neither expressed to be nor

purports to be a deed -

MR PRINGLE:  Nor purported to be and one of the reasons why

it does not purport to be, of course, is because it

does not purport to transfer the property which is

its subject-matter. It only gives an agreement

about something in the future about its

subject-matter.

MASON CJ: But it calls itself a deed, does it not, in

clause 4?

MR PRINGLE: There is one passage in the middle of the

document - - -

MASON CJ: Clause 4.

MR PRINGLE: Yes, clause 4.

MASON CJ:  How do you get out of that?

Lloyd 8 24/10/91

MR PRINGLE: Well, Your Honour, it calls itself an agreement

about four times, and it says underhand at the end.

It is a matter of looking at the - - -

MASON CJ: There is no necessary contradiction between

describing a document as an agreement and as a

deed. It can be a deed and an agreement at the

same time.

MR PRINGLE:  Yes, but, Your Honour, I would respectfully

submit that the mere fact that it is once referred

to as a deed is by no means conclusive.

MASON CJ: Well, it has got some other trappings of a deed,

has it not - recitals, witnesseth?

MR PRINGLE:  Yes.

MASON CJ: And "witness hereof" - they are all the trappings

of a deed.

MR PRINGLE:	But there are also other indications that they are not, because there are no covenants, just
agreements to do things. But, Your Honour, in our
submission, one of the points to be taken into
account - perhaps the fundamental point to be taken into account in deciding whether the instrument is
a deed is whether it purports to transfer
anything - transfer a property, or merely agrees
that property will be transferred on demand in the
future. But the last passage, Your Honours, is on page 9, lines 4 to 14, and His Honour does deal
with the point I have been putting to Your Honours. What His Honour said is:

That the document is not a deed is primarily

supported by the description contained in the

document itself, although it is quite clear

that such a description is not conclusive. It

is also supported by the fact that the

document speaks, not in terms of covenant, but

in terms of agreement - see, However, Norton
and Re Wilson's Settlements.	Nor does the

document speak in terms of present demise -

That is the point. His Honour cites Brown v

Turner, which is one of the cases cited by the

court in Manton v Parabolic and Boyd v Cooper, Your

Honour, which is also a case of present demise.

That appears from a quotation which is in

Mr Justice Wallace's judgment. And it goes on to

say:

It is an agreement which was required to be,

but which was not, followed by a formal

transfer.

Lloyd 24/10/91

So His Honour did, in fact, perhaps somewhat

briefly, and in the overall consideration of

whether the instrument was a deed, take this

particular point into account. What he said at

page 7, Your Honours, and which is criticized, is

that he did not have to carry out a separate

exercise in regard to the question of substance.

TOOHEY J: Is it your submission, Mr Pringle, that a

document that does not speak in terms of present

demise cannot be a deed?

MR PRINGLE: It is not a deed at common law. That is our

submission. Your Honour, it depends what the

document is. If it is an agreement, a contract

under seal, that is another matter. But, here we

are dealing with a deeming provision at the end of

the day, line 4. So one has got to look - if a

document purports to be a deed it is, as

Mr Justice Kennedy put it, that the test - and in

my respectful submission it is a good test - at the

foot of page 7 and going over on to page 8, quoting

from Mr Justice Coleridge in Keith's case:

"Now, an instrument purports to be that which

on the face of the instrument it more or less

accurately resembles".

And here we look at the document; it is called an

agreement; it has got indications perhaps both

ways, but it also is an agreement. It contains an

undertaking as to a future transfer of property and

does not purport itself to effect any transfer of

the property and that, in our respectful

submission, is a very telling indication against

the document being a deed.

The next aspect I would ask Your Honours to

look at briefly is the aspects of the way in which

Mr Justice Ipp, with whom the Chief Justice agreed,

and how the reasoning went.	The reasoning, for
present purposes, Your Honours, starts in my

submission at page 46, at the top of the page,

where His Honour talks about the importance placed

on intention with which a party has executed an

instrument has been emphasized in Australia in

several cases. Well, one is always, in the case of

a deed, concerned with whether it was intended to

be a deed, but we say the questions of substance

and form are two further requirements. If any one

of those three elements are missing the document is

not a deed, and that is where, we respectfully

submit, that the Full Court went wrong and that is

what I want to show you now.

Lloyd 10 24/10/91

GAUDRON J: But you keep asking whether it is a deed, and

the real question at the end of the day is whether

it purports to be a deed.

MR PRINGLE:  Yes, but there are three questions that have

got to be considered separately, we say, in

relation to that matter: form, substance and

intention, and if the document looks as if it is

missing any one of those, we would submit it is not

a deed.

TOOHEY J: Well then, if I understand the argument

correctly, Mr Pringle, what you are saying is that

when you find a document which clearly is only one

of several steps that have to be taken in order to

perfect the transaction - - -

MR PRINGLE:  One of two steps.

TOOHEY J: In this case, two steps.

MR PRINGLE:	Yes.
TOOHEY J:	Then what? It is at least an inference, or an

irresistible inference, that the document cannot be

a deed?

MR PRINGLE: Unless, Your Honours, it purports to be an

agreement under seal. But that is not what it

purports to be, you see. Nobody says it is an

agreement under seal. That is a different story

altogether. An agreement under seal can probably,

perhaps I should not make a concession, but

probably could promise anything, but - - -

TOOHEY J: Well, this is where your present demise

proposition comes in.

MR PRINGLE: Yes.

TOOHEY J:  If there is no further step to be taken in the

transaction, then it is more likely you would say

that the document purports to be a deed.

MR PRINGLE: Well, if it has the formalities, the Court will

find it is a deed. Put it this way, there is

present here signature with a witness, which is

essential, but what, as I say, is lacking is

anything to point to this being a contract under

seal. The argument is that is purports to be a

deed, and it does not purport to be a contract

under seal. Now, Your Honours, as I said, there is

no quarrel about the need for intention that an

instrument should be a deed. In the middle of the

page, Your Honours, you will see the short passage

where His Honour said:

Lloyd 11 24/10/91

In the present case the only material

from which the intention of the parties may be

discerned is comprised in the words that

appear in the document itself.

I will come back to that, but I will just remind

you that that is where it is.

MASON CJ:  When you say you will come to it, you are

presenting a special leave application, Mr Pringle.

MR PRINGLE: Yes. Your Honour, I said there were three

points.

MASON CJ: Yes.

MR PRINGLE: This is the third point. I am merely, to avoid

repetition, reminding Your Honours that that is

where the court decided what materials it should

take into account. We have got one short point

about other materials, which I would like to put

last, if I may.	Now, if I may just turn up -
restrict the material as far as possible.	Now,

Your Honours, in the middle of page 47 there is the sentence:

The question whether an instrument purports to

be a deed is closely bound up with the

question whether it appears from the words

used in the instrument that the parties

intended it to be a deed.

We respectfully submit that the court is there

combining two separate elements, but that is an

important step in the court's reasoning and we

challenge it.

At pages 47 to 48 there is a criticism of Mr

Justice Kennedy's reasons. I have endeavoured, in

putting those three pages to you, to meet that

challenge. At page 49, Your Honours, at the foot

of the page, it is said:  In my view, an examination of the

substance of the instrument reveals that it
was intended to record a gift of the

property -

Now that, in our respectful submission, is simply

wrong. It is confounding two separate elements.

At page 50, Your Honours, again towards the bottom

of the page, where His Honour said:

The object of the instrument was plainly

to confer upon Westham the right, free of consideration, to require transfer of the

property whenever it wished. The object of a

Lloyd 12 24/10/91

document is relevant in determining whether it

is a deed:

And then:

Apart from the substance of the document being indicative of the fact that a deed, and

not an agreement was intended, there are other

aspects thereof which are consistent with an

intention that the instrument be a deed.

Two points arise here. First of all there is
again, in our submission, the confounding of two

separate elements. It contradicts what was said in

Manton v Parabolic Pty Ltd and the cases I have

mentioned in relation to present demises.	It goes
flatly against those three cases that I have

mentioned. Then, Your Honours, in a revealing

passage at the foot of the next page, 51, you will

see that this is what His Honour said:

On examining the substance of the

instrument it is apparent in my view that the

form in which the instrument is couched - ie

as an agreement - is misleading. In any event

the fact that an instrument may be called an

agreement is not decisive.

Now this is a very important passage for more

than one reason. The first point that is to be

noted, that the court found that the form of the

instrument was an agreement and then reference is

made to two cases. Neither was a case where there

was a second step in the offing. In fact, Boyd v

Cooper supports us because it goes along the same
lines as Manton v Parabolic. That appears from Mr

Justice Wallace's reasons, Your Honours. At page

24, there are two sentences quoted by His Honour:

In Boyd v Cooper Stout CJ at 810 expressed the opinion:

"It is not decisive of the question that the

document may be called a memorandum of

agreement. What was the intention of the

parties? Did they mean this agreement to be

completed by a formal document or deed?"

So far from supporting the approach of the

Full Court the case was against the plaintiff's

interest. Then Yo~r Honours, over at page 52,

again just a short reference, line 4:

... in my opinion, that the instrument was

intended by the deceased "to be the most

solemn indication to the community that he

really means to do what he is doing".

Lloyd 13 24/10/91

That is language which the court, in Manton v

Parabolic, Mr Justice Young, applied to the second

step, not to the first step and of course, Your

Honours can see that the passages about the second

step are not cited by any of the judges in the Full

Court. So that is essentially our argument.

May I just finally take you very briefly to

what Mr Justice Kennedy said about the three other

deeds. This is on the last page of his reasons,

page 10, line 5, Your Honours. He said:

It was argued by Mr Curthoys, relying on

Rose v Commissioner of Stamps (S.A.) that, in

determining whether the document purports to
be a deed, I may have regard to the three

contemporaneous deeds of trust. This argument

was not challenged by Ms Leslie. I have grave

doubts, however, at to its correctness. In my

opinion, whether a document purports to be a

deed can be ascertained only from the document

itself. Nevertheless, if I am incorrect in

this view, I should add that the form of the

deeds of trust stands in stark contrast to the

form of the document now in question. Those

deeds were clearly drawn as such. The extent

of the departure of the present document from

their form, can only confirm that it was

intended as an agreement under hand.

I would add to Rose v Commissioner of Stamps a

decision in the Full Court of the Supreme Court of

New South Wales, which is the case starting at page

22 of the second book.

MASON CJ: What is that going to tell us?

MR PRINGLE:  That is going to tell Your Honours that if

there are contemporaneous documents which clearly

are deeds, and another one which is a doubtful one,

that is relevant.	The fact that one or more real
deeds were executed contemporaneously with the

question document is an important indication. That

was held by the trial court at page 26. I will not

read it. The Full Court, Your Honours, said at

page 29 - agreed with Mr Justice Tadgell's

conclusions - and says, at line 10:

In my opinion, the supplemental loan

agreement is not a deed, and consequently is

not a bond or covenant.

It is not expressed to be a deed, in

sharp contrast to the debenture executed on

the same day as the original agreement between

the same parties as those who executed the

supplemental loan agreement.

Lloyd 14 24/10/91

Mr Justice Murphy's reasons were concurred in

by Mr Justice Gobbo and Mr Justice Southwell. So

there is a fair body of authority behind me when I

say that when you come to the words in clause 4,

Your Honour, the words you mentioned that is, "this

deed", in my respectful submission, it is a

reasonable inference that a precedent to the deed

was used in the construction of an agreement under

hand, but all the indicia of a deed were not

eliminated. Something like that might have

happened, I am not putting it up as the fact, by

any means. In my respectful submission, something

very strange must have happened in this case, and

that is just one of the possibilities.

Your Honours, there is a question of the other

States, whether any decision of Your Honours would

be of assistance to practitioners in the courts

beyond Western Australia. First of all - - -

MASON CJ: There are provisions, are there not, couched in

similar language elsewhere?

MR PRINGLE:  Yes. They are not exactly the same,

Your Honours, but they are similar. They do not

use the word "purport". What they say "or if

expressed to be sealed". That, in our respectful submission, is really very close to us, so I will

not take time over that unless there is any

particular point made on the other side about that.

Unless I can assist you any further, those are our

submissions. ·

MASON CJ: I doubt it, Mr Pringle. Yes, Mr Zelestis.

MR ZELESTIS:  May it please Your Honours, in our respectful

submission, my learned friend has misread the

passage from Justice Young's judgment at the bottom

of book page 36 and the top of book page 37. To

begin with we say that one must read the passage

upon which my learned friend relies, which is the

sentence beginning at the bottom of page 36 "So

then" in the light of the preceding paragraph. But

even without that, if one reads the sentence

carefully, His Honour is saying that:

a deed is the most solemn act that a person

can perform with respect to a particular

property or contract involved, and the form of

that deed is as laid down by the law from time
to time.

His Honour is not there saying that one examines a transaction, sees what the ultimate end

of it is, and then concludes that it is only the

ultimate act that can constitute a deed.

His Honour is simply saying that one takes the

Lloyd 15 24/10/91

particular transaction in question, whether it be

an agreement at this point of time, or an
assurance, and then one asks what is the most

solemn way that that particular transaction can be

effected. So in our respectful submission,

His Honour is not, and would be wrong if he was

trying, there to confine deeds to ultimate legal
acts. Much of my learned friend's argument is built

on that passage, and if that interpretation of argument falls away.

concerned with altering the formalities which

attend the execution of a valid deed or instrument

under seal. As I understand my learned friend's

proposition, it is accepted that before an

instrument can be a deed it must be intended to be

a deed. My learned friend would go further when

applying section 9(4) and say that having found

that an instrument was so intended, one must

nevertheless by some mechanistic process see

whether it is expressed or purports to be a deed.

GAUDRON J: That is what the subsection says.

MR ZELESTIS: With respect, it does not say that you have to

do it by a mechanistic approach, it simply says

that the instrument -

GAUDRON J:	So we can do it by impression, can we?
MR ZELESTIS:	You can do it by the tenor of the instrument.

The word "purport", we say, is broad enough, as the court held in the Full Court below, to take into

account not only the words used as labels but what

the parties intended as manifested by the words and

in a particular case the words construed in a

factual background where evidence might be

admitted.

As we pointed out in the outline of

submissions we tendered, His Honour Justice

Kennedy, while setting off down a path in which he disavowed substance, meaning intention, and trying

to apply a mechanistic approach, ran into something

of a brick wall represented by the words in

clause 4, which refer to this deed. His Honour

could not resolve the problem of that brick wall in

a mechanistic way because looking for labels and

counting labels does not resolve the problem. It
is the concept of intention which supplies a
unifying or harmonizing concept, and at page 8 of
the application book His Honour was driven to
intention as the means of rejecting the relevance

of the words "this deed". There is a certain irony

in His Honour resorting to intention not to uphold

Lloyd 16 24/10/91

the instrument for the second respondent but to

reject it as being within section 9(4). His

Honour, at page 8, point 10, draws the inference

that the reference to this deed is:

an unintended misdescription of the nature of

the document.

We say there is no foundation for that. You

cannot find that foundation in intention without

looking at intention in a complete way, and that is

what His Honour at first instance failed to do. He

expressly set off down the path of not looking at

intention - that is the passage at page 7 line 25

that my learned friend has read, where His Honour

rejects the resort to substance.

Clause 4, which can be found set out in

His Honour Justice Kennedy's judgment at page 4,

was not an unimportant clause in the instrument.

It was the very clause by which the right to demand

a transfer was expressed. We say that in

construing the clause and the instrument in seeking

to ascertain the party's intention, one should have

regard not just to the fact that the words "this

deed" appear on this page of the document, one

should have regard to the context in which the parties spoke of this deed, because it was the context in which the right to call for a transfer

without payment was actually conferred. As I say,

there really is an eloquent irony in His Honour

resorting to intention at this point to dismiss the

reference to this deed.

My learned friend really has not developed any argument that there is a serious question of

construction of section 9(4). I do not understand

him to be raising so much a question of the meaning

of those words as how one goes about determining

whether an instrument is expressed in a certain way

or has a certain purport. Our simple submission is

that the Full Court was right in saying one does

not count the number of times a particular word or

a particular symbol is used. One has to examine

the matter by reference to intention upon the

proper construction of an instrument.

If my learned friend's contention was correct,

you could find when an instrument was intended to

be a deed, but section 9(4) would not assist it

because for some mechanistic reason you counted

more times in which agreement was used than deed

and you concluded that it was not for that reason

expressed to be a deed. The remedial effect of

section 9 would then be incomplete, it would not

cover the field of instruments intended to be a

deed.

Lloyd 17 24/10/91

In this case we argued below - and the

Full Court, while not expressly rejecting it, did not deal with it - we submitted that clause 4 was

sufficient to justify the conclusion that the

instrument was expressed to be a deed. Our

submission on that is that one does not, once

again, count the number of times the word is

referred to. If one is looking for an expression

one can find it once, and that is sufficient. If

that be rejected we say that the use of the

expression "this deed" in the context of clause 4
is decisive as to the purport.

Although my learned friend has not sought to raise the question of construction, there was a

difference of approach between the trial judge and
the majority because the trial judge, in his use of

the word "purport" at the top of page 8, resorted

to a definition which referred to the face of the

instrument and on that approach the word did not

add much to the word "purporting". The Full Court,

as exemplified by Justice Ipp's judgment at 46,

point about 30, over the page, adopted the

Macquarie Dictionary definition of "purport" and

held that purporting was used in contradistinction

to express - express meaning made clear - and

purporting to imply "to import to convey to the

mind as meaning". We say that that is a more

likely construction here, given the object of

section 9, which is to have in view things intended

to be deeds and to reduce the formalities required

for them to operate as deeds. What Parliament

should be presumed to be intending is to cover the

field of instruments intended to be deeds, those

which are expressed by clear words on the face and

those which, in a more indirect manner,

nevertheless reveal themselves as intending to take

effect as deeds or instruments under seal.

For those reasons we say that there is no

merit in any contention that the Full Court was

wrong. If there is no question of construction

really, it is simply a question whether this

instrument purports to be a deed, we say as to

that, that is not a question which should merit

special leave. As to the matter of interstate

provisions, we simply mention that the question

does not arise in South Australia because the

relevant section there goes so far as to refer not

only to instruments expressed to be a deed or

indenture but to a case where it appears from the
circumstances of execution or from the nature of

the instrument that the parties intended it to be a

deed. So the question does not arise in

South Australia. In the three other States in

which it may be said to arise, Victoria, New South

Wales and Queensland, there is no reference to

Lloyd 18 24/10/91

purporting and, more importantly, we would say

there is no divergence of authority interstate that

requires resolution because, in relation to a

narrower provision, namely the New South Wales

provision, Justice Young in Manton concluded that

one should have regard to the substance of the

instrument in deciding whether it was expressed to

be a deed.

So even absent purporting, one has a justice

of the Supreme Court of New South Wales reaching
that conclusion, so we say there is no question of

Australia-wide importance that requires resolution.

Those are our submissions.

MASON CJ: Thank you, Mr Zelestis. Yes, Mr Pringle.

MR PRINGLE:  Your Honours, in regard to the question of what

Mr Justice Young intended, there is just one more

sentence I would like to read to you. It is at

page 38, at letter F. What His Honour said was:

However, all these authorities -

which he sets out -

recognize that just because a document is

sealed, it is not necessarily a deed unless it

complies with the substantial requirements of

a deed.

My respectful submission is that the passages

that I did previously read to you made the point clear. If they did not I would submit that that

passage at least clears up the problem. In fact,

what my learned friend is seeking to do is to

support the error made by the Full Court, that

substance equals intention. Substance means

nothing of the sort.

The second point I would mention is the

question of section 9(4) and whether it raises a
question of construction.	I mentioned at the

beginning that there was a question concerning

section 9(4), and I thought I had made it clear

that that question is whether intention controls or

is central to the concept of purport. That is why

one first looks at the three elements that I

mentioned, that is intention, substance and form,

and bears these three in mind in considering what

section 9(4) means, and our submission is that what

the Full Court had done is, leaving subsection (4)

aside, treated the requirements as being two, one

being form and the second that substance equals

intention, and then carrying that error into its

construction of 9(4). In our respectful

submission, whether you regard this case really as

Lloyd 19 24/10/91

raising one or two points, it is a point of

fundamental importance.

Finally, Your Honours, I would simply say in

regard to the question of intention that my learned
friend has not addressed the three deeds points

which, in our submission, solve the question of

intention or at least allow the question of

substance to carry the day for us.

MASON CJ:  We will take a short adjournment to decide what

course we will take.

AT 5.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 5.20 PM

MASON CJ:  The question whether this instrument purports to

be a deed within the meaning of section 9(4) of the

statute raises no question of general principle and

turns on the particular terms of the instrument
itself. In these circumstances the case is not one
appropriate for the grant of special leave to

appeal and the application is refused.

MR ZELESTIS:  I seek costs, Your Honours.

MASON CJ:  Yes. You do not oppose that, Mr Pringle?

MR PRINGLE:  I just want to tell you one thing, and that is

that the applicant is legally aided, and has no

funds. It is a family matter. I have nothing more

to say than that.

MASON CJ:  Do you want to say anything about that,

Mr Zelestis?

MR ZELESTIS:  If that be so, it will all work itself in the

end. It is not,with respect, an answer to the

application for an order for costs.

MASON CJ:  The application is refused with costs.

AT 5.21 PM THE MATTER WAS ADJOURNED SINE DIE

Lloyd 20 24/10/91