Onesteel Trading Pty Ltd v Ewing International Limited Partnership
[2010] SASC 297
•20 October 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master)
ONESTEEL TRADING PTY LTD v EWING INTERNATIONAL LIMITED PARTNERSHIP & ORS
[2010] SASC 297
Judgment of The Honourable Justice Anderson
20 October 2010
PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT - IN GENERAL
Appeal against decision of a master of this court - appeal by way of re-hearing - master refused to grant summary judgment against respondents - summary judgment sought by appellant under deed purportedly executed between all parties - whether master correct to refuse application for summary judgment - master also refused to admit further evidence in support of summary judgment application - evidence by way of further affidavit - affidavit sought to be tendered after judgment reserved - whether master erred in exercise of the discretion not to admit further evidence.
Held: The master was correct in not giving summary judgment - there is a serious question to be tried - the proper execution of the deed is arguable - the master was correct in his exercise of discretion to refuse to admit additional evidence - the appellant made a deliberate decision to proceed, despite the lack of evidence.
Appeal dismissed.
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES - COURSE OF EVIDENCE - RE-OPENING CASE AND RECALLING WITNESSES - BY PARTIES
Supreme Court Civil Rules 2006 r 117, r 232 and r 242; Corporations Act 2001 (Cth) s 127 and s 129(3); Companies Act 1993 (NZ) s 18(1)(c)(ii) and s 180; Law of Property Act 1936 (SA) s 41(4); Stamp Duties Act 1923 (SA) Part 2, Schedule 2, referred to.
Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256; Luka v Lake Macquarie City [1998] 99 LGERA 283; Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491, applied.
Pioneer Insurance v White Heron [2008] NZHC 555; Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (in liq) (No 2) [2005] SASC 112; Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010; Perpetual Trustee Company Limited & Anor v Valuer-General; Trust Company of Australia Limited & Anor v Valuer-General (No 2) [2007] SASC 340, considered.
ONESTEEL TRADING PTY LTD v EWING INTERNATIONAL LIMITED PARTNERSHIP & ORS
[2010] SASC 297Appeal from a Master
ANDERSON J.
Introduction
This is an appeal from a decision of a master of this court on 31 May 2010. The master refused an application for summary judgment and also refused an application to adduce further evidence. The appellant also appeals the costs order made against it in respect of the applications before the master.
The appellant asks for judgment to be entered in its favour against the four respondents.
The issues in this appeal are, first, whether the master was correct in refusing to enter summary judgment for the appellant, because he found there was an arguable case by the defendant, in relation to the proper proof of the execution of a deed. The second issue is whether new evidence should have been admitted to assist in the question of whether the deed had been properly executed.
Background facts
The appellant Onesteel Trading Pty Ltd (“Onesteel”) is a supplier of steelmaking raw materials and is the plaintiff in the proceedings.
The four respondents are Ewing International Limited Partnership, Ewing Construction Ltd, Geoffrey Stuart Ewing, and Jermah Trustees Ltd. The first respondent is made up of eight partners – six individuals and two corporate partners. Two of the individual partners are Michael Anthony Heard and the third respondent. They are both limited members. One of the corporate partners is Gemahw Pty Ltd, which is a general partner. The second and fourth respondents are both companies incorporated in New Zealand and not registered in Australia as foreign companies. Ewing Construction Ltd fabricates carbon steel and stainless steel equipment.
The respondents had contracted with the appellant to purchase steel on a commercial credit basis. Steel was delivered by the appellant to the respondents. The respondents did not make all the payments required under the credit agreement and became indebted to the appellant. A settlement deed (“the deed”) was drawn up in 2007 to resolve the payment dispute. By that deed a compromise was agreed between the parties as to how the outstanding debts would be paid and by what date. That deed was signed and dated November 2007. Questions arise as to whether it was properly executed in respect of both the signatories and compliance with formalities. Further questions arise in respect of the applicable law, whether it is that of South Australia, Victoria, or New Zealand.
Application for summary judgment
On 19 June 2009 the appellant lodged a statement of claim in this court. On 17 July 2009 the appellant made an application for summary judgment against the four respondents pursuant to r 232 Supreme Court Rules 2006. Rule 232 provides:
[6R 232] Summary judgment
232(1) The Court may, on application by a party, give summary judgment for that party.
(2)Summary judgment may only be given if the Court is satisfied that—
(a)if the applicant is a plaintiff – there is no reasonable basis for defending the applicant’s claim; or
(b)if the applicant is a defendant – there is no reasonable basis for the claim against the applicant.
Summary judgment was sought in respect of non-compliance with the terms of the deed itself and not in relation to the underlying debt. The appellant sought to rely on various affidavits exhibiting the deed allegedly executed between the parties and various execution pages. Those affidavits were of Gary De Boar filed 17 July 2009 (FDN 6), Kerry Colmer filed 17 July 2009 (FDN 7), Kerry Colmer filed 30 July 2009 (FDN 9), Kerry Colmer filed 22 February 2010 (FDN 20) and Kerry Colmer filed 19 February 2010 (FDN 18). Ms Colmer was the solicitor for the appellant. The affidavits explained how the debt said to be owed to the appellant was calculated. The master made rulings that parts of the supporting affidavits were inadmissible. The inadmissible paragraphs were either based on information and belief rather than actual knowledge or were regarded as submissions and therefore argumentative.
Two days after the argument was heard, the appellant filed another affidavit of Kerry Colmer on 24 February 2010 (FDN 22) and made application for leave to tender that affidavit and its annexed exhibits as further evidence.
It was argued by the appellant that the basis for re-opening the argument was to answer the late assertion by the respondents in the particulars to paragraph 12 of their defence. Those particulars, delivered at or about 5.00 pm or 6.00 pm on the business day before the argument of the summary judgment application, stated that the reason there was no binding deed in effect between the parties was because the deed on which the claim is based was never properly executed.
Paragraph 12 of the defence provides:
12.Denied. The defendants say there has been no settlement deed which has taken effect between the parties.
Therefore the issue arising from the defence and the particulars provided, albeit late, to paragraph 12 of the defence made it clear that the execution of the deed needed to be proved. Clause 8 of the deed provided:
8. Operation of deed
This deed will take effect from the time it is executed by the last of the parties to it …
The master refused the application for an order for summary judgment and refused the appellant leave to tender the affidavit of Ms Colmer FDN 22. The affidavit sought to provide support for an alleged part performance of the deed because of payments made allegedly pursuant to the deed.
Grounds of the appeal
The appellant relies upon 7 grounds of appeal. They are:
1.The master erred in failing to allow the plaintiff to adduce further evidence in the affidavit of Kerry Colmer dated 24 February 2010.
2.The master erred in failing to consider or to adequately consider and apply the statutory assumptions contained in s 129 Corporations Act 2001 (Cth).
3.The master erred in failing to consider or to adequately consider and apply the statutory assumptions in s 18 Companies Act 1993 (NZ).
4.The master erred in refusing to enter summary judgment against the third defendant Geoffrey Ewing in that he found there was no deficiency in the third defendant’s execution of the deed.
5.The master erred in failing to find that even if the deed was not executed by the defendants in accordance with s 180 Companies Act 1993 (NZ), the deed was enforceable against the defendants as a simple contract.
6.The master erred in failing to consider or to adequately consider and apply the provisions of s 41(4) Law of Property Act 1936 (SA).
7.The master erred in failing to find that the laws of South Australia governed the deed of Settlement.
I will deal first with the refusal of the application for summary judgment.
Submissions regarding summary judgment – Grounds 2 to 7
Mr Livesey QC, for the appellant, argued that the deed was properly executed, under both the applicable Australian law and New Zealand law.
Mr Livesey submitted that it was a matter for each respondent as to whom they authorised to sign the deed on their behalf per clause 7. Clause 7 provides as follows:
7.Warranties
Each party to this Deed warrants to each other party that:
(a)it has full capacity, power and authority to enter into, execute and perform or cause to be performed the obligations set out in this Deed;
(b)it has relied on its own enquiries and has not entered into this Deed in reliance on or as a result of any representation, promise, statement, conduct or inducement by or on behalf of any other party otherwise than as has been expressly recorded in this Deed;
(c)it has taken independent legal advice, or has had the opportunity to take independent legal advice and has chosen not to, as to the nature, effect and extent of this Deed;
(d)it is aware that each other party to the Deed has relied upon the above warranties in entering into this Deed.
Accordingly, Mr Livesey submitted the appellant was entitled to rely upon the presumption of regularity that the respondents would properly, in the ordinary course of business, execute the deed. He submitted that the signatories to the deed purported to be, or purported to be officers of, the respondents and that authority has never been put into issue. Mr Livesey argued that the appellant had no reason to doubt the due execution of the deed.
Reliance was placed on the presumptions in s 18(1)(c)(ii) of the Companies Act 1993 (NZ) and s 129(3) of the Corporations Act 2001 (Cth). Mr Livesey submitted that the respondents did not rebut the presumptions. Section 18(1)(c)(ii) of the New Zealand Act provides that a company cannot assert against a person dealing with the company that a person held out by the company to be an authorised officer does not have authority to exercise powers customarily exercised by such an officer in a company carrying on a similar business.
Section 129(3) of the Corporations Act provides that any person held out by a company to be an officer or an agent has been duly appointed and has authority to exercise powers customarily exercised by that kind of officer of a similar company.
Mr Livesey argued that Mr Ewing had properly executed the deed in his personal capacity as third respondent and that summary judgment should have been entered against Mr Ewing at the very least.
It was argued by Mr Livesey that pursuant to s 127 Corporations Act 2001 (Cth), s 180 Companies Act 1993 (NZ) and s 41(4) Law of Property Act 1936 (SA) it was not necessary for the appellant to prove that the deed complied with formal execution requirements. Section 41(4) provides:
41 Execution and attestation of deeds
…
(4) Notwithstanding the defective execution of a deed by or on behalf of a party to the deed, the execution will be taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.
The appellant submitted that part-performance of the deed under clause 13 had occurred being payment of $60,000 in accordance with agreed payment dates in clause 12. It was submitted that the respondents did not explain these payments, and why they would be paid if the deed was not effective, other than to say that only the second respondent had paid such an amount, and not all four respondents.
In relation to the dollar amount sought by the appellant, the appellant stated that it was the correct amount, as calculated by it, due to it from the respondents, taking into account amounts already paid under the deed, including the $60,000.
Mr Livesey placed some reliance on the recitals to the deed. He submitted that the recitals show an intention of the parties to resolve the debt dispute through compromise from both sides and with an admission from the first and second respondent that they are indebted to the appellant and that the compromise, under the deed, should be held to be effective. It was submitted that the parties are bound by an estoppel.
In relation to the law applicable to the deed, it was submitted that clause 10.3 established that South Australian law governed the deed. Clause 10.3 provides:
10.3 Governing Law
The parties:
(a)irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of South Australia;
(b)waive any rights to object to any proceedings being brought in the Courts of South Australia;
(c)agree that any dispute arising in connection with this Deed may be issued in the State of South Australia.
Mr Livesey submitted that even if the wording of clause 10.3 did not make expressly clear the intention that South Australian law be the governing law, the clause implied it. Further, Mr Livesey referred to the presumption that parties intend to refer the entirety of their obligations to one legal system and submitted that in the absence of an express pleading to the contrary, the court applies the law of the forum ie South Australian law. Mr Livesey submitted that in the alternative, the legal system with the “closest and most real connection” was that of South Australia and that in any event the corresponding Victorian or New Zealand law was not shown to have any different effect.
In the alternative, should the deed be found not to be effective, Mr Livesey submitted that the deed was effective as a simple contract binding on the parties that signed it. Reliance was placed on Pioneer Insurance v White Heron [2008] NZHC 555 at [51].
Mr Ross-Smith, counsel for the respondents, argued that the deed had not been properly executed by all the parties to it and was therefore not in effect or not effective per clause 8. It was submitted that the appellant cannot place any reliance upon the recitals to the deed for that reason.
Mr Ross-Smith submitted that by paragraph 12 of the defence stating “The defendants say there has been no settlement deed which has taken effect between the parties” the respondents put the appellant on notice that clause 8 of the deed would be relied upon and that execution of the deed had not been completed. I have set out paragraph 12 of the defence and clause 8 of the deed earlier in these reasons.
Mr Ross-Smith accepted that the deed was properly executed by the third respondent. However, he submitted that this did not make the deed effective because of clause 8. He argued that as the deed was not effective, summary judgment could not and should not be entered against the third respondent under it. Further, Mr Ross-Smith submitted that the argument regarding judgment being entered severally was not raised before the master and cannot be made on appeal.
In the alternative, the respondents submitted that should the deed be found to have been properly executed as a formal deed, the stamp duty exemption in Part 2 of Schedule 2 to the Stamp Duties Act 1923 (SA) did not apply, and as it had not been stamped, the deed was nevertheless not in effect.
Mr Ross-Smith also argued that insofar as the appellant relies upon s 41(4) Law of Property Act 1936 (SA), insufficient external evidence of intent of the respondents to be bound by the deed had been adduced. He pointed to clause 8 as evidence that no such intent exists. He further argued that insofar as the appellant relies upon s 129(3) of the Corporations Act 2001 (Cth), that section does not apply to the second and fourth respondents and does not apply in any event where prima facie the document has not been properly executed. Regarding the application of s 18(1)(c)(ii) of the Companies Act 1993 (NZ) to the second and fourth respondents, Mr Ross-Smith submitted that it has not been shown that the execution of the deed is governed by the NZ Act, and that remains an arguable point. If the NZ Act does apply, Mr Ross-Smith submitted that the appellant did not provide sufficient evidence to rely on the application of the assumptions.
In relation to the argument that the deed was effective as a simple contract, Mr Ross-Smith submitted that summary judgment was applied for in respect of the claim based on the deed, not the debt. It was submitted that even as a simple contract, the second and fourth respondents could not be bound, not having complied with s 180 Companies Act 1993 (NZ). Further, that the document was not stamped. Mr Ross-Smith submitted that this contract argument was also new and had not been raised before the master.
With respect to applicable law, it was argued that no governing laws had been established, by the Deed or otherwise, and that the South Australian laws did not necessarily apply to resolve the dispute. Mr Ross-Smith stated that no evidence was put forward as to where the parties normally reside.
It was argued that the appellant cannot rely upon the arguments as to the presumption of regularity or estoppel as these arguments were not made before the master. The same was said for the argument that the respondents did not rebut the statutory presumptions relied upon by the appellant.
Mr Ross-Smith submitted that there was a paucity of direct evidence to support the summary judgment application. This was due to the rulings made by the master, namely, that certain paragraphs of the affidavits were inadmissible. He submitted that the appellant, by its choice, was before the master with a paucity of evidence.
Examination of the deed
I will now look at the execution of the deed.
At first glance, it is not clear whether the deed has been executed by a member of the first respondent partnership. It has been signed by two directors, Mr Heard and Mr Ewing. The signatures do not specify as directors of what entity. It is argued by Mr Livesey that they signed as directors of the partnership’s general member Gemahw Pty Ltd. However, the ASIC search of Gemahw Pty Ltd is attached to the disputed affidavit FDN 22 and was therefore not before the master.
Mr Heard also signed for the second respondent New Zealand company as general manager. It was argued by Mr Livesey that Onesteel was entitled to assume that Mr Heard had authority to bind the company, and relied upon s 129(3) of the Corporations Act 2001 (Cth) and s 18(1)(c)(ii) of the Companies Act 1993 (NZ). It is arguable whether a general manager would customarily exercise that kind of authority. Mr Livesey also relied on the fact that the sole director of the company, Mr Ewing, had elsewhere signed the execution page. However, Mr Ewing did not sign as director of the second respondent. The company secretary has not signed and no common seal has been affixed. It is arguable whether the requirements under either Australian law of New Zealand law have been satisfied.
Mr Ewing signed in his personal capacity as third respondent. His signature is witnessed. It is not disputed that Mr Ewing properly executed the deed.
Mr Paul Duggan, as sole director, signed the deed on behalf of the fourth respondent New Zealand company. Mr Andrew Friend’s signature as accountant appears to the left of Mr Duggan’s. Similar to execution for the second respondent, no common seal has been affixed and the company secretary has not signed. It is arguable whether Mr Friend witnessed Mr Duggan’s signing of the deed.
The master’s reasons regarding summary judgment
His Honour discussed the test to be satisfied for an order for summary judgment to be granted at [3] and [43]-[44]. The master relied upon principles in Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87 that the court must be satisfied “there is no real question to be tried” and stated that “the interests of justice are not to be sacrificed to efficiency and expedition”.
The master stated at [42]:
[42]In case I am found to be wrong in that ruling [regarding further evidence] I express the view that in any event the content of the affidavit exhibited to the affidavit of Ms Colmer (FDN 22) as Exhibit “KJC-4” if it had been before the Court would not have caused me to change my decision in this matter… there are a number of… alleged deficiencies in the execution of the Deed that in my view at least remain arguable or about which there is a real question to be tried.
He continued at [50]-[51]:
[50]The execution by Ewing Construction Ltd and Jermah Trustees Ltd of the Deed does not appear to comply with s 180(1)(a)(i) of the New Zealand Act. Nor does it seem to comply with s 180(1)(a)(ii) as no signature is witnessed. It does not appear to comply with s 180(1)(a)(iii) as again no signature is witnessed. There is no evidence of any compliance with s 180(1)(a)(iv), nor is there any evidence that would satisfactorily remove any issue in relation to compliance with s 180(1)(b) or s 180(1)(c) assuming those provisions were to have any application.
[51]… Section 41 of the Law of Property Act 1936 (SA) prescribes the manner in which a Deed is to be executed. It is at least arguable that these requirements have not been met in the execution of this document. In my view the plaintiff has arguably not provided adequate evidence (including FDN 22) to establish the validity of the Deed pursuant to s 41(4) of that Act.
And at [56] he said:
[56]The [appellant] relied on assumptions as to due execution set out in s 18 of the New Zealand Companies Act or s 129 of the [Corporations Act 2001 (Cth)]. However, in my view, those sections go more to apparent authority than the manner of execution of a Deed. There is a carefully prescribed way in which contracts, and in particular Deeds, can be executed by a company set out in s 180 of the New Zealand Companies Act and s 127 of the [Corporations Act 2001 (Cth)].
And again at [52]:
[52]I find that on the material before the Court it is at least reasonably arguable that the Deed was not properly executed by Jermah Trustees Ltd and Ewing Construction Ltd.
At [54]-[55]:
[54]In my view it is arguable, or there is a serious question to be tried, as to whether the Deed has been properly executed in accordance with requirements of the South Australian (or Victorian) legislation on behalf of Ewing International LP. There are similar questions about the execution by Ewing Construction Ltd and Jermah Trustees Ltd. Compliance with the provisions of s 41 of the Law of Property Act 1936 (SA) is presently also open to serious question.
[55]The [respondents] appear to have a reasonably arguable defence to the [appellant’s] case as presently framed.”
It seems to me that the observations of the master set out above do illustrate that there are arguable points relating to the execution of the deed. Whilst they may be technical arguments to some extent, this is an application for summary judgment, after all, and the master was quite correct in deciding that the deed had not been proved and that these matters were arguable.
Submissions regarding further evidence and FDN 22 – Ground 1
I will now deal with the application to re-open the argument.
The appellant argued that the affidavit of ms Colmer (FDN 22) was material to the issue of whether or not the deed was appropriately executed and that it provides some documentary evidence in relation to payments which were made in part performance of the deed. Exhibited to FDN 22 is the company extract of the general member of the first respondent, showing Mr Heard and Mr Ewing as directors. Mr Heard and Mr Ewing purportedly executed the deed on the first respondent’s behalf. Also exhibited to FDN 22 was a chain of emails between the parties discussing when payments were due under the deed. Mr Livesey pointed to the master’s conclusion at [42] as an error based on the exhibits. The master said:
[42]In case I am found to be wrong in that ruling [regarding further evidence] I express the view that in any event the content of the affidavit exhibited to the affidavit of Ms Colmer (FDN 22) as Exhibit “KJC-4” if it had been before the Court would not have caused me to change my decision in this matter…
The appellant submitted that FDN 22 was likely to affect the determination of the application for summary judgment.
The appellant further submitted that the late receipt of FDN 22 and its exhibits would not prejudice the respondents in any way and that this was the critical point in deciding the application. Reliance was placed on Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 266-267 as authority for the proposition that where a hearing has been completed but judgment has not yet been delivered, and in the absence of a deliberate decision not to call the further evidence during the hearing, the primary consideration in deciding an application to re-open should be any embarrassment or prejudice to the other side.
The respondents submitted that the material in FDN 22 could have easily been included in the affidavit FDN 20 which the appellant filed on the morning of the argument. It was submitted the material was not fresh evidence and was in fact available prior to the hearing. The respondents noted that the appellant chose to instruct counsel to proceed with argument rather than seek an adjournment to adduce the evidence in FDN 22, and that this should be seen as a deliberate decision of the kind described in the authorities. Such a deliberate decision will ordinarily be fatal: see Luka v Lake Macquarie City [1998] 99 LGERA 283 at 294 and Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 266-267. It was argued that in the absence of exceptional circumstances, a party cannot be allowed to reopen its case merely because it seeks to resile from a forensic decision made during the hearing: Ethnic Earth Pty Ltd v Quoin Technology Pty Ltd (in liq) (No 2) [2005] SASC 112.
The respondents further submitted that the appellant should have been on notice from the defence and the affidavit of Cathy Mayfield (FDN 10) that the deed would be challenged. The respondents submitted that in any event, to be successful in its application, the appellant bore the burden of proving the entitlement under a legally binding deed, whether the execution of the deed was challenged or not. It was submitted that at [42] the master made clear that the acceptance of FDN 22 into evidence would not have affected the outcome of the summary judgment application.
The respondents further submitted that the appellant would not be prejudiced by refusal of the application as it would not be precluded from pursuing its claim. It was argued that litigation ought be conducted expeditiously and with finality.
The master’s reasons regarding further evidence and FDN 22
His Honour at [36]-[39] discussed the relevant principles in Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491, Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010, and Perpetual Trustee Company Limited & Anor v Valuer-General; Trust Company of Australia Limited & Anor v Valuer-General (No 2) [2007] SASC 340. He cited Toohey J in Re Australasian Meat Industry Employees’ Union at 493-494 where Toohey J said:
In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence if believed would most probably affect the result; the evidence could not by reasonable diligence have been discovered before; and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late …
The master stated at [40]-[41]:
[40]I obtained the consent of both parties to consider Exhibit “KJC-4” to the affidavit of Ms Colmer (FDN 22). This is the proposed affidavit on which the plaintiff would rely if permission was given.
[41]In my view the interests of justice do not support re-opening the matter to allow further evidence to be called. I form that view taking into account all of the background circumstances to this matter, including the paucity of any direct evidence filed at any stage to support the application… That there was an issue about the Deed has been apparent since the filing of the defence. [The appellant] made a decision to proceed with the application on the material then before the Court. The affidavit that the [appellant] now seeks to put before the Court does not contain any fresh material that could not have been put in Ms Colmer’s responding affidavit filed on 22 February 2010 – FDN 20. I therefore refuse the application for permission to introduce further evidence.
The master went on to say at [42]:
[42]In case I am found to be wrong in that ruling [regarding further evidence] I express the view that in any event the content of the affidavit exhibited to the affidavit of Ms Colmer (FDN 22) as Exhibit “KJC-4” if it had been before the Court would not have caused me to change my decision in this matter… there are a number of… alleged deficiencies in the execution of the Deed that in my view at least remain arguable or about which there is a real question to be tried.
I agree with the master. This was a deliberate decision to proceed with a lack of evidence. An adjournment should have been sought once the master made the ruling to exclude some of the evidence relied upon. I am not prepared to interfere with the master’s discretion in saying that the affidavit would not have affected his conclusion in any event.
Conclusion
On an initial perusal of the deed, it is obvious that it appears to lack the appearance of a properly executed document. There are no common seals attached where required, signatures are missing, there is not a proper date, and generally it gives the appearance of an incomplete document. A deed is a formal document, and although modern deeds are less strict in their format, and there are some statutory relaxations of the formalities, nevertheless the deed must be proved to have been properly executed when that is an issue.
The appellant was clearly on notice that execution was an issue because of the denial in the defence. Clause 8 of the deed was an important factor. The deed has to be properly executed and by all parties to it. It is clearly reasonably arguable that it has not been properly executed. The master was correct in his decision to not give summary judgment.
In my view the master was correct in exercising the discretion to refuse to admit the additional evidence. Upon his analysis, with which I agree, it would not have affected the result.
I therefore dismiss the appeal.
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