Piety Developments Pty Ltd v Cumberland City Council - [2024] NSWCA 173

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 173
Hearing dates: 10 May 2024
Decision date: 23 July 2024
Before: Payne JA at [1];
Adamson JA at [2];
Griffiths AJA at [3]
Decision:
(1)   Dismiss the appeal.
(2)   Order the appellant to pay the respondents’ costs of the appeal.
(3)   Dismiss the cross-appeal.
(4)   Order the cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

Catchwords:
CONTRACTS – Formation – acceptance of offer – whether there was sufficient communication of acceptance – where the respondent Council had passed a resolution accepting the appellant’s offer during a Council meeting which was open to the public and livestreamed on its website and published a copy of the unsigned minutes of the meeting (which recorded that such resolution was passed) on its website the following day – where a rescission motion was lodged in respect of that resolution shortly after the meeting ended and the Council took no steps to notify the appellant that such resolution had been passed or to otherwise directly communicate its acceptance of the offer to the appellant – whether the legislative and regulatory framework affecting the Council’s operations were matters of context relevant to the objective assessment of whether there was effective communication of acceptance
LAND LAW – Conveyancing – Requirements of Writing – whether the signed minutes of the Council meeting comprised a “memorandum or note” of a contract for sale for the purposes of s 54A of the Conveyancing Act1919 (NSW) – whether the mayor and general manager who signed the minutes were lawfully authorised signatories pursuant to s 54A
LOCAL GOVERNMENT – whether land acquired by resumption under s 532 of the Local Government Act 1919 (NSW) was “land subject to a trust for a public purpose” and therefore should be classified as “community land” for the purposes of cl 6(2)(b) of Sch 7 of the Local Government Act 1993 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW), s 54A
Local Government Act 1919 (NSW) ss 331, 526, 532, 536A
Local Government Act 1993 (NSW), ss 9, 10, 10A, 220, Ch 12, ss 360, 367, 371, 372, 375, Sch 7 cl 6(2)(b)
Local Government (General) Regulation 2005 (NSW), Pt 7, reg 178(3)(e)
Local Government (General) Regulation 2021 (NSW), reg 178(1)(a), (3)(e), reg 232, reg 393B

Cases Cited:
Air Canada v Evans [2024] NSWCA 153
Allen v Carbone (1975) 132 CLR 528; [1975] HCA 14
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Burr v Commissioners of Bo’ness (1896) 24 R. 148
Duke Unley Pty Ltd v The Corporation of the City of Unley [2021] SASCA 91
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Ex parte Renouf (1924) SR (NSW) 463
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Keough v Corporation of the City of Burnside (1992) 75 LGRA 163
Lanca Contracting Ltd. v. Brant County Board of Education (1986) 54 O.R. (2d) 414; [1986] O.J. No. 234
Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
Meates v Attorney-General [1983] NZLR 308
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
PietyDevelopments Pty Ltd v Cumberland City Council(No 2) [2023] NSWSC 774
Powell v Lee (1908) 99 LT 284
Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 406 ALR 678
Smeaton v The Magistrates and Council of St Andrews, as Commissioners of Police (1871) 9 M. (H.L.) 24
Twynam Pastoral Co Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 13,448
Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32

Texts Cited:
JD Heydon, Heydon on Contract: The General Part (2019, Thomson Reuters)
JW Carter, Contract Law in Australia (8th ed, 2023, JW Carter Publishing)
Nicholas Seddon, Government Contracts (6th ed, 2018, The Federation Press)

Category: Principal judgment
Parties: Piety Developments Pty Ltd (Appellant/First Cross-Respondent)
Cumberland City Council (First Respondent/Cross-appellant)
Bilal El-Cheikh (Second Respondent/Second Cross-Respondent)
Representation:
Counsel:
F Corsaro SC/A Rizk (Appellant/Cross-respondent)
A McInerney SC/D Robertson (Respondent/Cross-appellant)
Solicitors:
Darby Jones (Appellant/Cross-respondent)
McCabes (Respondent/Cross-appellant)

File Number(s): 2024/14852
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

Piety Developments Pty Ltd v Cumberland City Council [2023] NSWSC 480; Piety Developments Pty Ltd v Cumberland City Council (No 3) [2023] NSWSC 1627

Date of Decision:

5 May 2023; 19 December 2023

Before:

Parker J

File Number(s):

2022/38975

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant (Piety) claimed that the first respondent, Cumberland City Council (the Council) had entered into a collateral contract with it for the sale of Council-owned land located at 13 John St, Lidcombe (the Land) and sought inter alia specific performance of such contract. The Land was acquired by the Council’s predecessor in 1965 by resumption pursuant to s 532 of the Local Government Act 1919 (NSW) (1919 Act).

Following an unsuccessful public tender process for the sale and redevelopment of the Land, the Council entered into negotiations with Piety and another tenderer and requested that they both provide their “best and final offer” by 4 October 2021. On 4 October 2021, Piety submitted its “best and final offer”.

At a Council meeting held on 3 November 2021, a resolution was passed to “accept” Piety’s offer and delegated authority to the General Manager “to execute the documents” (the 3 November Resolution). The meeting took place in public and was livestreamed on the Council’s website. One of Piety’s directors, Mr El-Cheikh, deposed below that he learnt of the passing of the 3 November Resolution on the same day it was passed but did not identify who told him this information.

On 4 November 2021, the Council published on its website unsigned minutes of the 3 November 2021 meeting, which recorded the 3 November Resolution having been passed. Mr El-Cheikh deposed below to having received on 9 November 2021 a copy of those unsigned minutes and Piety contended that a collateral contract was consequently formed on that date.

Shortly after the 3 November 2021 meeting concluded, a notice of motion for rescission was lodged in respect of the 3 November Resolution (the rescission motion). At the beginning of the next Council meeting on 17 November 2021, the General Manager explained that the rescission motion had been received but would not be considered at that meeting because the Council was entering a caretaker period due to the upcoming local government elections. A resolution was then passed confirming the minutes of the 3 November 2021 meeting and those minutes were signed by the Mayor and the General Manager.

On appeal, the principal issues were:

(i) whether the Council’s acceptance of Piety’s offer made on 4 October 2021 was sufficiently communicated to Piety so as to constitute a binding and enforceable contract.

(ii) whether an enforceable agreement arose in compliance with the requirements of s 54A of the Conveyancing Act1919 (NSW).

(iii) whether the 3 November Resolution could have legal effect in the form of a collateral contract, subject to acceptance being found to have been sufficiently communicated to Piety.

(iv) the legal implications of the fact that the 3 November Resolution was the subject of the rescission motion, including upon the question of whether a binding and enforceable contract was formed and whether Piety had any legal basis to prevent the Council from determining such motion.

(v) whether the Land was “community land” because it was “land subject to a trust for a public purpose” under cl 6(2)(b) of Sch 7 of the Local Government Act 1993 (NSW) (LG Act).

The Court (Griffiths AJA, Payne and Adamson JJA agreeing) held, dismissing the appeal and cross-appeal, with costs:

As to issue (i):

(1) The primary judge did not fail to conduct an objective assessment of the parties’ relevant actions and conduct in determining whether or not the Council’s acceptance was sufficiently communicated to Piety so as to bring into existence a binding agreement: at [83]. The legislative and regulatory framework affecting the Council’s decision-making processes and actions were important matters of context and relevant to that objective assessment: at [93]-[102].

(2) The primary judge did not err in concluding that the passing of the 3 November Resolution and the publication of the unsigned minutes of the Council’s meeting on its website the following day did not constitute a communication by the Council to Piety of its acceptance of Piety’s offer: at [103]. There was no evidence that the Council, or any person authorised by the Council, communicated to Piety specifically the Council’s acceptance of Piety’s offer: at [103], [106]. The unsigned minutes published on the Council’s website should reasonably have been understood by Piety as being in draft form and a step in the exercise of the Council’s governmental functions: at [108]-[110].

As to issue (ii):

(3) The signed minutes of the 3 November 2021 meeting did not comprise a “memorandum or note” of a contract for sale for the purposes of s 54A of the Conveyancing Act: at [136]. It was significant that when the draft minutes were confirmed and signed, as required by s 375 of the LG Act, the motion for rescission of the 3 November Resolution had formally been lodged and was awaiting determination, and notice had been given that such motion could not be considered at the next Council meeting on 17 November 2021 because the Council was entering into caretaker mode: at [135].

(4) It was unnecessary to determine the issue of whether the Mayor was a (or, alternatively, the Mayor and the General Manager were) lawfully authorised signatory(s) within the meaning of s 54A(1) of the Conveyancing Act: at [137].

As to issues (iii) and (iv):

(5) It was both unnecessary and inappropriate in the circumstances to determine these issues: at [143]-[145], [149].

As to issue (v):

(6) The Land was not subject to a “trust for a public purpose” as provided for in cl 6(2)(b) of Sch 7 of the LG Act and therefore was not “community land” for the purpose of that clause: at [164]. In Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59, the statutory history and operation of s 526 of the 1919 Act created the conditions for the existence of a trust for a public purpose, rather than the notion of equity at large: at [160]-[161]. This was not the case for land resumed under s 532 of the 1919 Act, as occurred here, which attracted the operation of s 536A: at [160], [163].

Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 distinguished; Duke Unley Pty Ltd v The Corporation of the City of Unley [2021] SASCA 91 approved.

JUDGMENT

PAYNE JA: I agree with Griffiths AJA.
ADAMSON JA: I agree with Griffiths AJA.
GRIFFITHS AJA: This appeal is from a judgment of Parker J and orders dated 15 December 2023 (see Piety Developments Pty Ltd v Cumberland City Council (No 3) [2023] NSWSC 1627 (PJ or primary judgment)). There is also a notice of contention and a cross-appeal brought against part of this judgment as well as against an earlier judgment of Parker J (see Piety Developments Pty Ltd v Cumberland City Council [2023] NSWSC 480 (No 1 judgment)). In the No 1 judgment, Parker J explained why he rejected the first respondent’s claim that it lacked power to sell the relevant land because it was “community land” and not “operational land” for the purposes of the Local Government Act 1993 (NSW) (LG Act).
For completeness, it might be noted that there is a separate judgment dealing with costs (see PietyDevelopments Pty Ltd v Cumberland City Council(No 2) [2023] NSWSC 774).
The proceedings concern council-owned land located at 13 John St, Lidcombe (the Land). The appellant (Piety) claims to have entered into a specifically enforceable contract to purchase the Land with the first respondent, the Cumberland City Council (the Council). The Land was acquired by resumption by the Council’s predecessor in 1965 for use as a carpark, a purpose for which it continues to be used.
By way of a broad overview, in June 2020, the Council issued a public invitation to tender for the sale and redevelopment of the Land. In the course of post-tender negotiations, Piety made an offer which the Council resolved to accept at a Council meeting on 3 November 2021 (the 3 November Resolution). The Council’s General Manager was authorised by the 3 November Resolution to execute the necessary documents to give effect to the sale. The resolution was passed by the Mayor’s casting vote. Shortly after the meeting ended, notice was given of a proposed rescission motion. No steps were taken on behalf of the Council to execute the contract documents after this notice was given. Nor was the rescission motion progressed, in circumstances where the Council would be entering into a caretaker period on 5 November 2021, pending local government elections, and Piety obtained a stay which prevented the rescission motion being finalised.
On 12 December 2023, Piety sought a declaration that there was a binding agreement between the Council and it for the sale of the Land, which required the Council to execute a contract for sale of that Land. It also sought specific performance of the alleged agreement by requiring the Council and/or its General Manager to execute and exchange the contract for the sale of the Land. Alternatively, it sought damages and/or equitable compensation.
The primary judge dismissed Piety’s claims. His Honour was not satisfied that the alleged contract was legally effective because he considered that acceptance was not validly communicated to Piety and, in any event, any such contract would be unenforceable under s 54A of the Conveyancing Act 1919 (NSW).
The central issue on appeal is whether a binding agreement was created in November 2021 when Piety became aware that the Council had passed the 3 November Resolution (ground 1). The resolution of this issue involves some important questions regarding the extent to which the application of conventional principles of contract law need to take account of the legislative and regulatory framework affecting the Council’s activities.
Those principles are also relevant to ground 1 of the cross appeal, which challenges any finding made by the primary judge which accepted Piety’s contention below that there was a collateral contract, separate from and prior to the contract for the sale of the Land. As will emerge, it is unclear whether the primary judge made any such explicit finding. His Honour did acknowledge, however, that the Piety’s argument was designed to outflank the difficulties which would arise if attention was focused only on the contract for the sale of Land, given the well established convention in New South Wales that no binding agreement generally arises until contracts are exchanged, which did not occur here.
There is a separate issue in the appeal whether an enforceable agreement arose in compliance with the requirements of s 54A of the Conveyancing Act (grounds 2 and 3).
Ground 2 of the cross-appeal relates to the legal implications of the fact that the 3 November Resolution was subject to a rescission motion. Ground 3 of the cross-appeal challenges the primary judge’s conclusion in the No 1 judgment that the Land was not community land.
For the following reasons, I propose that the appeal be dismissed, with costs. I also propose that the cross-appeal be dismissed, with costs. It is unnecessary to address the notice of contention.
These reasons for judgment are structured as follows:

Background matters summarised.

Primary judgment summarised.

The grounds of appeal and cross-appeal.

Consideration and disposition of the appeal and cross-appeal.

Conclusion.

(a) Background matters summarised

Given the central significance of the question whether there was an effective communication of the Council’s acceptance of Piety’s offer so as to give rise to a binding agreement, it is necessary to descend into some detail in describing some relevant surrounding circumstances. Those circumstances should include relevant aspects of the legislative and regulatory framework affecting the Council’s activities (see [93]ff below).
As noted above, the Land was resumed in 1965 for use as a carpark.
On 23 June 2020, the Council issued a public invitation to tender for the sale and redevelopment of the Land. The tender process was governed by Pt 7 of the Local Government (General) Regulation 2005 (NSW) (and, later, in accordance with the Local Government (General) Regulation 2021 (NSW) (the LG Regulation) following its commencement on 1 September 2021). The tender documentation was published on the Council’s online portal named “eProcure”. The tender was given the reference number “RFX034” on the portal. In order to login to the eProcure platform, the user was required to tick an acknowledgment of the Terms and Conditions, which included hyperlinks to the Council’s Code of Conduct, Statement of Business Ethics, Conditions of RFX and Purchase Order Terms and Conditions. Various documents were uploaded to the portal and accessible to tenderers. This included: (1) a draft contract for the sale and purchase of Land 2019 edition (the draft contract); (2) the RFX034 Specification for 13 John Street; (3) the Conditions of RFX; and (4) the Tender Offer Form.
The Conditions of RFX included the following conditions:

“3.   STATUS OF RFX
…
3.2   The invitation to respond in clause 3.1 is an invitation to treat. It is not an offer capable of acceptance, nor should it be relied upon, construed or interpreted as such.
3.3   By submitting a submission, the Respondent acknowledges that the submission does not create a contract between the Respondent and the Council.
3.4   Without limiting any clause of the Conditions of Participation:
(a)   Respondents acknowledge that no agreement has been formed between the Council and a Respondent as a result of the RFX process such that the Council is limited or constrained in the way in which it can deal with a Respondent’s offer other than (if at all) as set out in these Conditions of RFX;…
…
20.   ACCEPTANCE OF SUBMISSION
…
20.3   A submission will not be deemed to have been accepted and no contract in respect of the Services/Works will arise between any Respondent and the Council until the successful Respondent and the Council execute the Contract by signing the Formal Instrument of Agreement or where the value is less than $50,000, when Council issues a Purchase Order.”

The front page of the draft contract included the following statements:

“*** IMPORTANT NOTE ***
This Contract is in draft form only and is subject to change.
It is likely that variations and amendments will be required to this Contract to reflect the deal that has been struck between the respective parties.
The proposed purchaser acknowledges that the vendor will have regard to the community benefit that the proposed purchaser intends on providing in respect of the property the subject of the Contract.
The vendor anticipates that it will register a positive covenant and/or restrictive covenant on the title to the Property the subject of the Contract prior to completion of the Contract to ensure that the community benefit which the vendor has undertaken to provide is provided by the vendor and/or its successors in title in respect of the Property.
The terms of the positive covenant and/or restrictive covenant as well as the terms of the instrument to be registered on the title to the Property are not yet known and the terms will depend on the nature of the community benefit that the proposed purchaser intends on providing in respect of the Property.”

Two further aspects of the draft contract should be noted. As the primary judge noted at PJ[70]-[71], Piety contended that the draft contract used in the Council’s tender was the contract which the Council had agreed to execute, subject to two amendments which Piety said were reflected in its best and final offer made by email on 4 October 2021 (see at [28] below). The first amendment related to the definition of “date for completion”, which Piety contended should be read as “6 months after exchange of contract”. The second change was that instead of the definition “Community Benefit” remaining “to be advised”, that definition should reflect that part of Piety’s best and final offer which related to that topic as set out in its 4 October 2021 email (see further at [28] below).
Three tenders were submitted on or before the closing date of 21 July 2020, including one on behalf of Piety (submitted by Fuse Architecture Pty Ltd (Fuse Architecture)), and one by Landmark Group Australia Pty Ltd (Landmark). Fuse Architecture and its director, Mr Alain Assoum, acted as agents for Piety. Mr Assoum was project manager for Piety.
On 8 September 2020, the Council sent letters to the tenderers notifying them that the Council had resolved to decline all tenders and enter into negotiations with all three tenderers in accordance with reg 178(3)(e) of the Local Government (General) Regulation 2005.
The Council proceeded to enter into negotiations with both Piety and Landmark. Participation in the “new negotiation phase” required Piety to log in to the eProcure platform and accept the Terms and Conditions (which were unchanged from the original tender process apart from an updated Code of Conduct) before resubmitting their applications.
In April 2021, Piety and Landmark submitted their respective further offers to the Council through the eProcure portal. Piety’s proposal included some proposed variations to the draft contract (these variations were described as “non-conformances”, the details of which are not relevant to the appeal).
In respect of Piety’s offer at that time:

Piety submitted a completed RFX offer form, which stated in Item 1.8:

“Piety Group agree that the price submitted is preliminary and will be finalized based on final negotiations with council regarding community benefit + price. The final purchase price does not need any further contribution by council. The proposed redevelopment of the site will significantly improve local amenity and benefit the extended community of Lidcombe. Piety Group recognises that in the negotiation of the Sale Contract a portion of the site will be dedicated to the council for community benefit”.

On 8 April 2021 at 4.59pm, Piety provided to the Council three options of “offers” for its purchase of the Land and delivery of car parking spaces, each of which included a cash payment to be made “6 months after the exchange of contracts”. Piety acknowledged that: “[i]t is Council’s intention that once the Contract has been exchanged, Council will no longer have an interest in the land”.

At the Council meeting held on 8 September 2021, the two offers were considered and the following resolution was passed:

“That Council:
1. Continue to negotiate with both proponents for the potential sale of land at 13 John St Lidcombe, with the view of receiving a best and final offer.
2. Clarify for negotiations, the requirements for on site community infrastructure as follows:
•    150 underground public car parking spaces of unrestricted parking.
•   Car parking spaces are to be conveniently located at the top of the underground carparking of the development, above any dedicated private car parking.
•   Ongoing maintenance of the public carpark will be the responsibility of the proponent, and not Council.
• The public car park is to be operated as a Free Parking Area per s.650 of the Local Government Act 1993.
3. Undertake a community consultation process in relation to the proposal.
4. Receive a report at the finalisation of the above (1-3) for Council’s determination.”

On 23 September 2021, the Council sent letters to Piety and Landmark which notified them of the 8 September 2021 resolution and requested that they submit their “best and final offer” to the Council for the purchase of the Land by 2pm on 4 October 2021.
On 4 October 2021, acting through its director, Mr Masri, Piety submitted its “best and final offer” in the following terms (emphasis in original):

“Dear Sarah,
Thank you for your letter dated 23/09/2021 regarding, Tender No RFx034 – Proposed sale & future redevelopment of 13 John Street, Lidcombe (Final Negotiation Offer).
With due consideration to points 1-4 resolved by council (on 8^th September 2021) we submit our best and final offer for the purchase of 13 John Street, Lidcombe as:
The purchase price of 13 John Street, Lidcombe without the non-conformances and DA approval conditions is $12,000,000 total works in kind offer, based on:
• 150 car spaces @$65,000/car space (as per the car space requirements below) = $9,750,000
• Cash payment of $2,250,000 6 months after exchange of contract

We can also provide the following clarifications (in bold) as part of the offer with regards to council requirements for on-site community infrastructure as outlined in point 2 of the resolution:
• 150 underground public car parking spaces of unrestricted parking.
Response: Piety Group can confirm we will provide 150 underground public car spaces of unrestricted access

•    Car parking spaces are to be conveniently located at the top of the underground carparking of the development, above any dedicated private car parking.
Response: Piety Group can confirm that the car parking spaces are to be conveniently located on the top levels of the underground carparking of the development, above any dedicated private car parking
•    Ongoing maintenance of the public carpark will be the responsibility of the proponent, and not Council.
Response: Piety Group can confirm that ongoing maintenance of the public carpark will not be the responsibility of council.
•    The public car park is to be operated as a Free Parking Area per s.650 of the Local Government Act 1993.
Response: Piety Group can confirm that the public car park is to be operated as a Free Parking Area per S.650 of the local Government Act 1993.
Please don’t hesitate to contact me if you have any questions or require further additional information. We look forward to finalizing the EOI and working with council to deliver this integral piece of community infrastructure to the Lidcombe town Centre.
Kind regards,
Danny Masri
Director”

There are several things to note about Piety’s “best and final offer”. First, as the primary judge noted at PJ[99]-[101], neither the terms of the draft contract, nor the 4 October 2021 email, contained any terms which required Piety to undertake to provide the proposed 150 car spaces for use by the general public or which obliged Piety to provide the general public with ongoing access to any carpark once constructed.
Secondly, the offer to make a cash payment of $2,250,000 was tied to a date six months after exchange of contracts, thereby indicating that Piety anticipated that contracts would be exchanged for the sale of the Land.
Thirdly, the email concludes with Mr Masri stating that Piety looked forward “to finalizing the EOI” and “working with council” to deliver what was described as an “integral piece of community infrastructure to the Lidcombe town Centre”. This suggests that Mr Masri contemplated that further (undefined) action was required in order to complete the expression of interest process.
There is no evidence of any further contact or negotiations between the Council and Piety in the four week period between the date of Piety’s best and final offer and the Council’s meeting on 3 November 2021.
In the interim, a Council meeting was held on 20 October 2021 in which the offers by Piety and Landmark were considered. During a closed session, a motion which proposed inter alia that the Council accept Piety’s offer was considered but did not pass for lack of majority support.
At that meeting, Councillors were provided with a report by the Council’s staff describing the outcome of “final negotiations” (the Council Staff Report), as well as a Community Engagement Report dated 12 October 2021 relating to the sale and redevelopment of the Land. The Council Staff Report said that it presented “all information for Council’s determination in accordance with Council’s previous resolution”. It recommended that Council:

“1.   Receive and consider the best and final offers from Landmark Pty Ltd and Piety Developments Pty Ltd (Attachment 1).
2.   Receive and consider the final Community Engagement Report (Attachment 2).
3.   In accordance with the Council resolution of 8 September 2021, determine the matter.”

The conclusion to the Council Staff Report stated (emphasis added):

“Council has been presented all the information as resolved at the 8 September 2021 Council meeting in this report. It is now recommended that Council proceed to make a final determination on this matter.”

The day after the 20 October 2021 Council meeting, three Councillors submitted a notice of motion in the following terms:

“That Council:
With respect to the expression of interest undertaken for the council car park located at 13 John Street Lidcombe;
1.   Receive the best and final offers from Landmark Pty Ltd and Piety Developments Pty Ltd. that were submitted.
2.   Receive the final Community Engagement Report.
3. Accept the offer from Piety Developments Pty Ltd. In accordance with Clause 179(1)(a) [sic] of the Local Government (General) Regulation 2021.
4.   Delegate authority to the General Manager to execute the documents.”

The final Community Engagement Report referred to in [2] of that motion is the same as that referred to at [34] above. It summarised the findings of the community consultation process regarding the proposed sale and redevelopment of the Land, as required by [3] of the resolution passed on 8 September 2021 (see at [26] above). The Community Engagement Report described the steps which were taken to consult with the community on the proposal and the results of that consultation.
At the Council meeting held on 3 November 2021, the Councillors considered that motion. The following resolution was passed with the Mayor’s casting vote (3 November Resolution) (emphasis added):

“That Council:
With respect to the expression of interest undertaken for the council car park located at 13 John Street Lidcombe;
1.   Receive the best and final offers from Landmark Pty Ltd and Piety Developments Pty Ltd that were submitted.
2.   Receive the final Community Engagement Report.
3. Accept the offer from Piety Developments Pty Ltd in accordance with Clause 178(1)(a) of the Local Government (General) Regulation 2021.
4.   Delegate authority to the General Manager to execute the documents.”

The Council’s vote on that motion took place in public and was livestreamed on the Council’s website.
Shortly after the meeting concluded, a handwritten notice of motion of rescission (rescission motion), signed by four Councillors, was handed to Mr Charlie Ayoub, the Council’s then Executive Manager Corporate Services. A photo taken by Mr Ayoub of this handwritten document was in evidence below and was timestamped as taken eight minutes after the meeting concluded. It reads:

“I hereby give notice of motion to rescind Item No. C11/21-889 [i.e., the subject resolution] passed at the meeting of 3^rd Nov 2021.
[Four signatures and names omitted]
ALTERNATIVE MOTION: That there be no further action in relation to 13 John St Lidcombe.”

Mr Ayoub gave evidence below that, shortly after receiving the document, he informed the Council’s General Manager, Mr Peter Fitzgerald, of its existence and contents. The next day, Mr Ayoub sought legal advice regarding the effect of the Council considering the rescission motion, and any vote taken on it, in circumstances where the Council would be entering a caretaker period on 5 November 2021 due to upcoming local government elections.
In an affidavit filed below on 22 November 2023, Mr Fitzgerald gave unchallenged evidence which is relevant to the central issue whether the 3 November Resolution was sufficiently communicated to Piety so as to give rise to a binding agreement. He deposed:

“Since becoming aware of the rescission motion shortly after the closure of the 3 November 2021 meeting:
(a)   I have not informed Piety of the passing of the 3 November Resolution;
(b)   Having made inquiries, I am not aware of any other Council officer or staff member having informed Piety of the passing of the 3 November Resolution;
(c)   I have not taken any steps to execute any documents pursuant to paragraph 4 of the 3 November Resolution; and
(d)   I am not aware of any document, particularly a contract for the sale of the Property, in existence that reflected the terms of the final and best offer put by Piety, and in respect of which I could have exercised my delegated authority to execute the document.”

Ordinarily, and in accordance with the Council’s Code of Meeting Practice, the rescission motion would have been included on the agenda for the next ordinary meeting of the Council, which was due to be held on 17 November 2021. But because the Council was entering a caretaker period, it could not enter into a contract or undertaking involving the expenditure or receipt by the Council of an amount equal to or greater than $150,000 or 1% of the Council’s revenue from rates in the preceding financial year (whichever was the larger) pursuant to reg 393B of the LG Regulation.
At the commencement of the 17 November 2021 meeting, Mr Fitzgerald informed the Councillors that the rescission motion had been received but would not be considered at that meeting.
Following the local government elections on 4 December 2021, the rescission motion was included on the agenda for the Council meeting scheduled for 9 February 2022. However, earlier on that same day, Piety obtained an interlocutory injunction restraining the Council from “taking any action to rescind the resolution of [the Council] dated 3 November 2021 concerning the sale of the property located at 13 John St, Lidcombe”, pending the hearing and determination of the proceedings below. The injunction remains in force pending the determination of this appeal.
Returning to the evidence concerning the events which occurred in early November 2021, on 4 November 2021, the Council published on its website unsigned minutes which recorded the 3 November Resolution having been passed. This is evidence, Piety contends, of the communication of Council’s acceptance of its 4 October 2021 offer.
One of Piety’s directors, Mr Bilal El-Cheikh, deposed in an affidavit below dated 4 October 2023, that, to the best of his recollection, he and therefore Piety learnt of the passing of the 3 November Resolution the day it was passed although he was not personally present at the meeting. He did not identify who told him this information. Piety contends that this is further evidence of the communication of the Council’s acceptance of its offer.
Mr El-Cheikh also deposed to having received on 9 November 2021 a copy of the draft minutes of the 3 November 2021 meeting. Mr El-Cheikh’s evidence was not challenged. Neither he nor any other witness (i.e., Mr Osman Khanji, Piety’s instructing solicitor; Mr Fitzgerald; and Mr Ayoub) were required for cross-examination. Piety contended that this date, i.e. 9 November 2021, is the date on which the parties entered into a binding collateral agreement to proceed to finalise the contract for the sale of the Land.
The primary judge noted at PJ[16] that no disputed issues of fact fell to be determined below. It might also be noted that while Piety relied on an affidavit filed on 15 July 2022 by Mr Assoum in the separate proceeding relating to the issue of whether the Land was “community land” (about which more will be said further below), Mr Assoum’s affidavit was not read in the final hearing. But some correspondence in which he was involved was tendered in evidence in that hearing.
The correspondence included the following email which was sent at 4.45pm on 9 November 2021 by Mr Assoum (copying in Mr El-Cheikh and Mr Masri), to Ms Sarah Szabo, the Council’s then Procurement Business Partner (emphasis in original):

“Subject: RE: RFx034 (Rfx034.1) – Proposed sale and future redevelopment of 13 John Street, Lidcombe
Hi Sarah,
Hope you are well.
We have noticed that at the recent Cumberland council ordinary meeting (3^rd of November), that the following motion was passed with regard to the above tender:
That Council:
With respect to the expression of interest undertaken for the council car park located at 13 John Street Lidcombe;
1.   Receive the best and final offers from Landmark Pty Ltd and Piety Developments Pty Ltd that were submitted.
2.   Receive the final Community Engagement Report.
3. Accept the offer from Piety Developments Pty Ltd in accordance with Clause 178(1)(a) of the Local Government (General) Regulation 2021.
4.   Delegate authority to the General Manager to execute the documents.
Based on the above motion our client is keen to move forward to execute the documents as soon as possible.
Could we please schedule a meeting with the relevant council officers to discuss further.
Look forward to your response,
Regards,
ALAIN ASSOUM
DIRECTOR”

On 11 November 2021, Mr Assoum sent another email to Ms Szabo, recording that they had had a phone conversation earlier that day. The email stated that “[t]he client is keen to ensure that the council motion as passed is the current project status and finalize the sale by the end of the year if possible”.
Later that same day, Mr Ayoub sent the following internal email to his superior, Mr Fitzgerald, recording a phone conversation he had had with Mr Assoum (emphasis added):

“Peter [i.e., Mr Fitzgerald]
I just received a call back from Janice from your office from Alan [sic] from Fuse Architects on behalf of Piety Group. They were wanting to advance negotiations with the hope of executing a contract for the sale of John St Lidcombe.
I advised Alan [sic] that Council was in receipt of a rescission motion regarding the sale, and due to the Caretaker period provisions, were in the hands of the Minister for Local Government for a determination on whether the matter can be heard at the next Council meeting.
After explaining it all and discussing it at length, Alan [sic] thanked me, took my name and we ended the call…”

This internal email was admitted without limitation as to its use. It suggests that, as at 11 November 2021, Piety, through its agent Mr Assoum, did not view the 3 November Resolution as creating a binding agreement because it was acknowledged on that day that “negotiations” had to be advanced with the hope of executing a contract for the sale of the Land.
During the Council meeting on 17 November 2021, a resolution was passed confirming the minutes of the 3 November 2021 meeting. The minutes were then signed by the Mayor (as Chairperson) and the General Manager.
On or around 17 November 2021, a signed version of the minutes of the 3 November 2021 meeting was published on the Council’s website. I will return to this matter below when considering the issue whether the Council’s acceptance of Piety’s offer was adequately communicated.

(b) Primary judgment summarised

I will focus on the primary judge’s reasoning regarding the issues of acceptance and s 54A of the Conveyancing Act. As noted above, the issue as to whether or not the Land was “community land” and therefore not capable of being sold was addressed separately in the No 1 judgment.

Legal effect of the 3 November Resolution

The primary judge concluded that the alleged collateral contract, which Piety said was based on the draft contract included in the Council’s invitation for tender documentation (subject to the two amendments arising from Piety’s 4 October 2021 email), was not legally effective because the purported acceptance was not validly communicated to Piety as putative offeror. Before summarising the stated basis for this conclusion, it is convenient to summarise the primary judge’s reasons for rejecting some arguments advanced below by the Council concerning the 3 November Resolution.

The primary judge did not accept the Council’s submission that there were several reasons why the 3 November Resolution had no legal effect. First, the Council contended that the 3 November Resolution could have no legal effect given the reference in [3] of that resolution to reg 178(1)(a) of the LG Regulation, which applies to a tender process. The Council emphasised that the tender process here had been terminated by a resolution dated 2 September 2020, which Piety had been notified of on 8 September 2020.
The primary judge said that this submission “goes too far”. It was common ground that, by 3 November 2021, the parties were “in negotiations” as contemplated by reg 178(3)(e) of the LG Regulation. His Honour added that this simply meant “negotiations of the usual type” to which the ordinary contractual rules applied. His Honour accepted, however, that the reference in [3] of the 3 November Resolution to reg 178(1)(a) may have some significance in determining the central question whether there was an effective contractual acceptance of Piety’s best and final offer.
The primary judge rejected the Council’s additional submission that the reference to reg 178(1)(a) created an ambiguity in the 3 November Resolution, because it was unclear whether the resolution was referring to Piety’s email dated 4 October 2021, or to an earlier offer made by Piety in the context of the original tender process.
The primary judge addressed this point together with the Council’s further argument that the case fitted within the third category identified in Masters v Cameron (1954) 91 CLR 353 at 360; [1954] HCA 72 (where no legally enforceable contract comes into existence until exchange of formal contractual documents). The Council emphasised the convention in New South Wales that parties are presumed when negotiating for the purchase of land not to be bound until formal contracts are exchanged. His Honour stated that this contention, at least in its broadest form:

“[79] …is outflanked by the way in which [Piety] puts its case at trial. [Piety] seeks to enforce a collateral contract which would require the Council to execute a formal contract for the sale of the land. That is not inconsistent with a mutual understanding that a document containing all of the terms of the bargain would be reduced to writing and made the subject of a formal exchange.”

The primary judge did not make an explicit finding one way or the other as to whether there was a collateral contract of the kind advanced by Piety. His Honour added, however, that even if Piety’s collateral contract argument was accepted, it still left open the question whether, on its proper construction, the 3 November Resolution evinced an intention to accept Piety’s best and final offer as set out in its email of 4 October 2021. His Honour found at PJ[80] that it was clear from the terms of the 3 November Resolution that it was intended to commit the Council to an acceptance of the offer as set out in the 4 October 2021 email. A finding of fact was made at PJ[80] that it was clear from the terms of the 3 November Resolution “that no further negotiation about the terms was contemplated”. The Council appears to challenge this finding in ground 1 of its cross-appeal.
Although the primary judge found that the 3 November Resolution was intended to commit the Council to an acceptance of Piety’s best and final offer, his Honour acknowledged that it was necessary to consider whether there was an effective communication of that resolution to Piety so as to give rise to a binding agreement.

(ii) Was the 3 November Resolution communicated to Piety in a manner which created a binding agreement?

The primary judge summarised the relevant principles regarding the need for communication of the acceptance of an offer as follows:

“[84]   I did not understand the applicable principles to be in dispute. Whether conduct of an offeree amounts to acceptance of the offer is a question of the parties’ mutual intention. It is to be determined by the Court by reference to the terms of the offer and the nature of the conduct, within the matrix of relevant circumstances known, or at least available, to the parties.
[85]   It may be accepted that the LG Act and Regulations had no direct effect on the parties’ negotiations in terms of prescribing any particular form of acceptance for PD’s offer. But that does not mean that the Act and Regulations were irrelevant for contractual purposes. PD must be taken to have known, for the purposes of the circumstantial matrix, that it was dealing with a statutory body with express statutory powers to rescind any resolution it might pass, at least until that resolution had been formally communicated to the parties affected by it.
[86]   The extent to which the Court could take the provisions of the Code of Meeting Practice into account came up in the course of the parties’ submissions. But there was some confusion in the submissions between the Code of Conduct, which formed part of the tender documents (see [23] above), and the Code of Meeting Practice, which did not. In the end, it is unnecessary to decide whether the Code of Meeting Practice formed part of the matrix of contractually relevant circumstances. PD must at least be taken to have known that the Council had statutory obligations, and governmental responsibilities, which obliged it to conduct meetings in public, and to publish information about its decisions, as well as to keep formal minutes of the proceedings at its meetings.”

Piety submitted below that the Council’s acceptance had been adequately communicated by two means: (a) the awareness that Piety’s director, Mr El-Cheikh, had gained from another (unidentified) person that the resolution to “accept” Piety’s offer had been passed on 3 November 2021; and (b) the publication on 4 November 2021 of the unsigned minutes on the Council’s website.
The primary judge was not persuaded that these methods of communication were legally effective. First, the evidence did not reveal how the unidentified person learned that the resolution had passed so as to convey that news to Mr El-Cheikh. In light of this evidentiary gap, the primary judge could not identify any more specific act of communication than the passing of the resolution in public (given that the vote took place in public and was livestreamed). His Honour emphasised that the Councillors would not have known whether a representative of Piety was either present at the meeting or viewing the meeting on livestream.
Secondly, as to the publication of the unsigned minutes on 4 November 2021, the primary judge found that the Council had not taken any steps to communicate the contents of the minutes to Piety; the publication of those minutes was not particularly directed to communicating their content to Piety or anyone else. Furthermore, the minutes were unsigned and “could only reasonably have been understood as a draft”. The minutes would not be considered for adoption until the next Council meeting on 17 November 2021. His Honour described the publication of the unsigned minutes as another step taken by the Council “in the exercise of its governmental functions”.
The primary judge reasoned at PJ[91] that, in opening the meeting to the public, the Council was simply complying with its regulatory obligations to conduct meetings publicly, as required by ss 10 and 10A of the LG Act. By s 10, all members of the public (unless expelled) are entitled to be present at meetings. Section 10A details specific circumstances in which meetings may be closed. His Honour added that, even absent these statutory provisions, it would have been open to the Council to conduct the meeting publicly if it considered this to be appropriate in the discharge of its governmental functions.
Thirdly, and somewhat tentatively because the issue had not been the subject of submissions, the primary judge said at PJ[93] that there may have been a more fundamental difficulty confronting Piety. This was because, at the meeting on 3 November 2021, the Council had resolved to accept Piety’s offer and, in ordinary language, “to resolve to do something is to decide to do it”. But, from a contractual viewpoint, to accept Piety’s offer required more than the decision – it required the decision to be communicated. His Honour added at PJ[94] that the resolution might have been “nothing more than an expression of the Council’s will” together with a grant of authority to the Council’s officers to make the necessary formal communication which, on the available evidence, did not occur.
In these circumstances, the primary judge concluded at PJ[95] that there was no “effective communication” of the 3 November Resolution.

(iii) Section 54A(1) of the Conveyancing Act

The primary judge also determined that the alleged contract did not comply with s 54A(1) of the Conveyancing Act, which provides as follows:

54A Contracts for sale etc of land to be in writing
(1) No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged.

The primary judge concluded that the “memorandum or note”, which was accepted between the parties below to be the signed minutes of the meeting of 3 November 2021, was not a “memorandum of the contract” nor was it signed by a “person thereunto lawfully authorised”. While his Honour accepted that the signed minutes recorded a resolution to accept Piety’s offer, only a part of those minutes and, indeed, part of the resolution, recorded the acceptance and could thereby qualify as a memorandum. Importantly, when these minutes were signed on 17 November 2021, a rescission motion had been moved and was pending, which was noted at the beginning of the 17 November 2021 Council meeting. This underlined the fact that the minutes were prepared as they were pursuant to statutory obligations, and not for the purpose of recording contractual dealings.
As for the requirement for authorisation under s 54A(1) of the Conveyancing Act, the primary judge saw it as significant that the minutes were signed by the Mayor (in accordance with the statutory requirement in s 375(2) of the LG Act). There was no evidence, however, that the Mayor was authorised to sign a memorandum of the contract arising from the acceptance of Piety’s offer, with the consequence that the authorisation requirement in s 54A(1) was not met. Similarly, his Honour considered the evidence did not reveal that the General Manager, who also signed the minutes, was so authorised. Thus, Piety could not enforce the putative collateral contract in those circumstances.

(c) The grounds of appeal and cross-appeal

By ground 1 of the appeal, Piety contends that the primary judge erred in finding that the acceptance of the offer was not sufficiently communicated so as to constitute a binding and enforceable contract. It submits that the primary judge failed to give proper weight and consideration to whether the evidence objectively manifested the Council’s assent to the acceptance of Piety’s offer.
By grounds 2 and 3, Piety challenges the primary judge’s findings in relation to s 54A of the Conveyancing Act. It contends that the signed form of the minutes recording the 3 November Resolution comprised a memorandum of a contract complying with that section (ground 2) and, further, that the Mayor was (or, alternatively, the Mayor and the General Manager were) a relevantly authorised person within the meaning of s 54A(1) (ground 3).
The three grounds of the cross-appeal are summarised at [10] and [12] above.
Piety’s notice of motion filed on 24 April 2024, which challenged the competency of ground 3 of the Council’s cross-appeal, was dismissed by consent.

(d) Consideration and disposition of the appeal and cross-appeal

Ground 1

Piety’s submissions in support of ground 1 may be summarised as follows:

The primary judge overemphasised the Council’s subjective intentions and failed to give effect to the objective theory of contract.

McHugh JA’s observations in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 535 applied, namely:

“[t]he ultimate issue is whether a reasonable bystander would regard the conduct of the offeree…as signalling to the offeror that his offer has been accepted…”.
Thus, the subjective motive of the acceptor or offeree in communicating acceptance of the offer is immaterial; all that matters is the communication of assent.

The primary judge erred in requiring Piety to establish that there was formal notice of acceptance of its offer; it is sufficient that it can objectively be determined that there was acceptance.

Viewing matters objectively, Piety contended that the primary judge should have found that:

Piety was aware that the Council would decide at a meeting whether or not to accept Piety’s best and final offer;

the ordinary way in which a person comes to know what decisions a council has made is to observe the meeting (whether in person or by livestream) or to review the minutes of the meeting;

the Council voluntarily elected to upload the minutes of the 3 November 2021 meeting to its public website the next day;

by uploading those minutes, any intrinsic communication was a communication made by the Council;

the minutes uploaded on 4 November 2021 were not stated to be a draft, nor was there any statement that they should be read as being subject to a motion for revision or rescission;

the unchallenged evidence of Mr El-Cheikh was that he saw the minutes, including the 3 November Resolution, on the Council’s website; and

the words of the resolution were clear and unqualified and did not convey a sense that anything else needed to be done before the Council’s decision to accept Piety’s offer was considered final and binding.

Piety contended that undue weight was placed by the primary judge on the Council’s ability to rescind the 3 November Resolution. That statutory power undoubtedly exists, but Piety submitted that it should not be permitted to cut across contractual rights and obligations.
Piety also contended that, even if the Council had statutory obligations to publish information about its decisions, the uploading of the minutes on 4 November 2021 was a voluntary and not a statutorily-required act.
Piety’s position is substantially encapsulated in [18] of its outline of written submissions:

“Ultimately, the central premise of the primary judge’s finding was that the communication of the acceptance of the respondent’s offer was not specifically directed to the appellant, but presumably to the public at large. The primary judge’s proposition that public communication of the acceptance of an offer made to a specific member of the public could not amount to an enforceable contract was made in [the] absence of any authority and counter-intuitive. The appellant submits it is not a proposition which the Court would embrace. There is no juridical principle which justifies it, and it is at odds with the objective theory of contract.”

I shall now explain why I do not accept Piety’s submissions concerning ground 1.
In my view, contrary to Piety’s claim, the primary judge did not fail to conduct an objective assessment of the relevant actions and conduct of the parties in determining whether or not the Council’s acceptance of Piety’s offer was communicated to Piety in a manner which brought into existence a binding agreement.
It is well settled in Australia that an objective approach applies to many aspects of the law of contracts. This is reflected in the following statement of the relevant principles regarding acceptance in JW Carter, Contract Law in Australia (8^th ed, 2023, JW Carter Publishing) (emphasis added in text, footnotes omitted):

“[3-20] Acceptance must be unequivocal. Acceptance must be unequivocal, so that nothing further is left to be negotiated between the parties. The language used must convey clearly a decision by the offeree to be bound by the terms of the offer. Whether this has occurred depends on the view that a reasonable person in the position of the offeror would take. Therefore, it is sufficient if a reasonable person in the position of the offeror would regard the communication as an acceptance. The offeree need not have said expressly ‘I accept your offer’. For example, the offeree may have informed the offeror that goods or materials have been ordered to commence performance of the contract.
…
[3-26] Acceptance effective on communication. An acceptance is generally effective to conclude a contract only when the fact of acceptance is communicated to the offeror. Until then, the offeror can withdraw the offer. Knowledge may of course be inferred from conduct.
…”

To similar effect, there is the following passage in JD Heydon, Heydon on Contract: The General Part (2019, Thomson Reuters) (footnotes omitted):

“[2.440] Need for communication of acceptance
Apart from some exceptions… an acceptance does not have the effect of creating a contract until it is communicated to the offeror. There are numerous examples of this. There is no contract when the ‘acceptance’ is written on a document kept by the ‘acceptor’. There is no contract when a company resolves to accept an offer to buy shares but does not tell the offeror. There is no contract when an offeree decides to accept an offer to sell goods to the offeree and instructs a bank to pay, but neither the offeree nor the bank tell the offeror. There is no contract when the offeree communicates an acceptance only to the offeree’s own agent. The rule vindicates the interest in certainty. It would be wrong for the offeror to be bound before the offeror knew that the offer had been accepted. But it is not necessary that the acceptance be communicated by the offeree. Communication can come from another person so long as that person is acting with the offeree’s authority.”

There is also a helpful analysis of some of the authorities by Heydon JA in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [71]-[79]. His Honour noted at [74] that “offer and acceptance analysis is a useful tool in most circumstances, and indeed is ‘normal’ and ‘conventional’…”. That is not to say, however, that a contract does not exist even though there are difficulties in identifying an offer or acceptance. As Ormiston J said in Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32 at 82-83 (in approving Cooke J’s statement in Meates v Attorney-General [1983] NZLR 308 at 377) (emphasis added):

“I would not treat difficulties in analysing the dealings into a strict classification of offer and acceptance as necessarily decisive in this field, although any difficulty on that head is a factor telling against a contract. The acid test in the case like the present is whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain.”

After analysing several authorities, Heydon JA made the following additional relevant observations in Brambles Holdings:

“[81] In the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the Council and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?”

Adherence to these general principles does not mean that a trial judge errs if findings are made concerning the parties’ subjective conduct and mutual intentions. Such findings are a necessary step along the way in determining the ultimate question of whether a reasonable person with knowledge of all relevant matters and surrounding circumstances would regard communication by the offeree as an acceptance of an offer.

Fairly read, I consider that this is what the primary judge intended by the language his Honour used in summarising the relevant legal principles at PJ[84]-[86] (which are set out at [64] above). It is true that his Honour did not expressly refer to what a reasonable person with the relevant attributed knowledge would believe. But fairly read, his reasons disclose that he recognised the need for, and applied, an objective assessment. This is reflected, for example, in his Honour’s statement at PJ[84] that whether conduct of an offeree amounts to acceptance of an offer requires a determination by the Court by reference to the terms of the offer and the nature of the offerees’ conduct “within the matrix of relevant circumstances known, or at least available, to the parties” (emphasis added). The phrase “or at least available” is language recognising the need for an objective assessment. His Honour recognised that the parties’ subjective knowledge was not the end of the matter. Consideration also had to be given to matters of constructive or attributed knowledge.
His Honour’s appreciation of the need for an objective approach is further indicated in the language used at PJ[85]. There, after acknowledging that the LG Act and the LG Regulation did not prescribe any particular form of acceptance by the Council of Piety’s offer, his Honour added that Piety “must be taken to have known” (emphasis added) that it was dealing with a statutory body with express statutory powers of rescission. The attribution of such knowledge to Piety is consistent with the objective theory of contract.
The need for an objective approach is further reinforced by his Honour’s reference at PJ[86] that Piety “must at least be taken to have known” (emphasis added) that the Council had statutory obligations and governmental responsibilities concerning the conduct of meetings in public, the publication of information about its decisions, and the keeping of minutes of meetings. All these matters involve the attribution of knowledge, which is consistent with the objective theory of contract.
For all these reasons, I reject Piety’s contention that the primary judge failed to conduct an objective assessment of relevant matters.
I also reject Piety’s claim that the primary judge erred in the weight which he gave to relevant parts of the legislative and regulatory framework affecting the Council’s operations in concluding that there was no effective communication of the Council’s acceptance so as to create a binding agreement. These were important matters of context. It is uncontroversial that context is an important element in the task of contractual construction (see, e.g., Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46] per French CJ, Nettle and Gordon JJ, and more recently, Air Canada v Evans [2024] NSWCA 153 at [26] per Leeming JA, Payne JA and Griffiths AJA agreeing).
Context is important not only in assessing words in a contract but also in assessing the conduct and actions of the parties. This accords with what Kiefel CJ and Gageler J said recently in Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 406 ALR 678 in the context of ascertaining the terms of an agreement by reference to the parties’ words and conduct (footnote omitted, emphasis added):

“[15] … The words and conduct of each party must be understood by reference to what the words and conduct would have led a reasonable person in the position of the other party to believe. The ultimate question is what reasonable people with knowledge of the background circumstances then known to both parties would be taken by their words and conduct to have agreed.”

An important element of context in the present proceeding is the fact that the Council is a public body whose decisions and actions are heavily regulated by provisions of the LG Act, the LG Regulation and instruments made under that legislation, which are intended to enhance public accountability and transparency.
Of course, as Piety pointed out, pursuant to s 220 of the LG Act, the Council has the legal capacity and powers of a natural person, including the power to contract. But those powers fall to be exercised within the relevant legislative and regulatory framework. These particular elements of context are critical to the application of the objective theory of contract in the particular circumstances of this case.
I do not accept Piety’s submission that the primary judge erred in the significance and weight he gave to matters of context in determining whether or not there was an effective communication of the Council’s acceptance of Piety’s best and final offer.
Relevant features of the legislative and regulatory scheme which applied in the circumstances may be summarised as follows:

Elected councillors operating as the governing body of a council must exercise the Council’s functions at regular meetings convened and conducted in accordance with Ch 12 of the LG Act.

Meetings are required to be conducted in accordance with relevant provisions of the LG Act, the LG Regulation and a council’s Code of Meeting Practice, which must be adopted in compliance with the Model Code prescribed by reg 232 of the LG Regulation (see s 360 of the LG Act).

Although Council meetings must be open to the public (see s 10 of the LG Act), such meetings may be closed when a council is considering certain matters, as provided for in s 10A(2) of the LG Act.

A decision of a council is a decision supported by a majority of votes at the meeting at which a quorum is present (s 371 of the LG Act).

Significantly, a resolution passed by a council may be altered or rescinded in accordance with s 372 of the LG Act and Pt 17 of the Council’s Code of Meeting Practice (the Code).

Councils are required to ensure that full and accurate minutes are kept of proceedings of their meetings (s 375(1) of the LG Act). The minutes of each meeting must be confirmed at a subsequent meeting and signed by the person presiding at that subsequent meeting (s 375(2)).

The Code was adopted by the Council in accordance with s 360(3) of the LG Act. Under s 360(5), the Council was obliged to conduct its meetings in accordance with the Code.
Key relevant provisions of the Code included cll 3.5, 3.7 and 3.8. They obliged the Council to give notice to the public via its website, and to notify each Councillor, of the time, date and place for each meeting. Councillors also had to be advised of the business proposed to be considered at each meeting (Code cl 3.7; LG Act s 367(1)) and the Council had to publish copies of the agendas and associated business papers on its website for public viewing (Code cl 3.22; LG Act ss 9(2) and (4)).
Clause 19 of the Code expands upon the obligation in s 375 of the LG Act for a council to publish its minutes. It relevantly states:

“Minutes of meetings
19.1   The Council is to keep full and accurate minutes of the proceedings of meetings of the Council. (S.375(1) LGA)
19.2   At a minimum, the General Manager must ensure that the following matters are recorded in the Council’s minutes:
(a)   details of each motion moved at a Council meeting and of any amendments moved to it,
(b)   the names of the mover and seconder of the motion or amendment,
(c)   whether the motion or amendment was passed or lost, and
(d)   such other matters specifically required under this code.
19.3   The minutes of a Council meeting must be confirmed at a subsequent meeting of the Council. (S.375(2) LGA)
19.4   Any debate on the confirmation of the minutes is to be confined to whether the minutes are a full and accurate record of the meeting they relate to.
19.5   When the minutes have been confirmed, they are to be signed by the person presiding at the subsequent meeting. (S.375(3) LGA)
19.6   The confirmed minutes of a meeting may be amended to correct typographical or administrative errors after they have been confirmed. Any amendment made under this clause must not alter the substance of any decision made at the meeting.
19.7   The confirmed minutes of a Council meeting must be published on the Council’s website. This clause does not prevent the Council from also publishing unconfirmed minutes of its meetings on its website prior to their confirmation.”

The primary judge was correct to take these matters of context into account in assessing, from an objective viewpoint, whether there was an effective communication to Piety of the Council’s acceptance of its best and final offer so as to give rise to a binding agreement.
His Honour did not err in concluding that the passing of the 3 November Resolution and the publication of the unsigned minutes of the Council’s meeting on its website the following day (including a record of the terms of the 3 November Resolution) did not constitute a communication by the Council to Piety of its acceptance of Piety’s offer. There was no evidence that the Council took any step which was directed to communicate to Piety specifically its acceptance of Piety’s offer. There was, for example, no letter sent by the Council to Piety informing it of the passing of the 3 November Resolution or its content, in contrast with the Council’s earlier practice. For example, the Council sent letters to the tenderers on 8 September 2020 informing them of the outcome of the tender process and, on 23 September 2021, the Council sent letters to Piety and Landmark informing them of the Council’s resolution passed on 8 September 2021 and requesting that they submit their best and final offer.
Although Mr El-Cheikh gave unchallenged evidence that he was told about the passing of the resolution on 3 November 2021, he did not identify the source of that information. The primary judge was entitled to give it little if any weight, particularly where there was also unchallenged evidence by the Council’s General Manager, Mr Fitzgerald, that he did not tell Piety of the passing of the 3 November Resolution and that, having made inquiries, he was not aware of any other Council officer or staff member who notified Piety of this event (see at [42] above).
Piety’s contention at [78(4)(f)] above, should be rejected. It is unsupported by, and inconsistent with, Mr El-Cheikh’s evidence which is summarised above. Mr El-Cheikh did not depose that he saw the minutes and the 3 November Resolution on the Council’s website. The source of his knowledge of these matters was not identified.
The position could well be different if there was evidence that a person authorised by the Council communicated to Piety the terms or substance of the 3 November Resolution. But there was no such evidence.
I also consider that the primary judge did not err in finding that there was no effective communication to Piety of the Council’s acceptance based on Mr El-Cheikh’s unchallenged evidence that he received a copy of the draft minutes on 9 November 2021. It is not clear how this occurred, but there is no evidence to suggest that a copy of the draft minutes was provided to Mr El-Cheikh by someone authorised to do so on behalf of the Council.
The evidence is clear that the unsigned minutes of the 3 November 2021 Council meeting were uploaded to the Council website the following day and were therefore publicly accessible. In my respectful view, the primary judge was correct not to view this action as an effective communication to Piety specifically such as to give rise to an immediately binding agreement. The minutes were clearly unsigned and should reasonably have been understood by Mr El-Cheikh or any other representative of Piety as being in a draft form.
The publication of the draft and unsigned minutes on the Council website on 4 November 2021 was not a step required by any express legislative requirement, but is properly to be viewed as an appropriate step taken by the Council consistently with those requirements and with particular regard to cl 19.7 of the Code. I accept the Council’s contentions in this regard. Draft minutes have to be prepared as part of the Council’s mandatory obligation of preparing minutes of meetings pursuant to s 375 of the LG Act. Draft minutes have to be confirmed at the subsequent Council meeting (see s 375(2) of the LG Act and cll 19.3-19.7 of the Code). Accordingly, the draft minutes of the Council’s meetings may be published with the agenda and business papers for a subsequent meeting and the agendas and business papers for Council meetings have to be published on the Council’s website prior to the meeting (s 9 of the LG Act and cl 3.22 of the Code).
Having regard to all these matters, the primary judge did not err in stating at PJ[92] that the publication of the unsigned minutes on the Council’s website on 4 November 2021 was a step in the exercise of the Council’s “governmental functions” and “was not in any way directed to [Piety]”.
As to the signed minutes which were uploaded to the Council’s website on 17 November 2021, it is difficult to see how this could amount to relevant evidence of sufficient communication of the collateral contract in circumstances where Piety confirmed in oral address in the appeal that its case was that the collateral contract became binding on 9 November 2021, which is more than a week before the uploading of the signed minutes. If, contrary to the above, the uploading of the signed minutes was relevant, I would accept the Council’s submission that this should not be viewed as sufficient communication of acceptance when this occurred. Piety had been aware of the rescission motion since 11 November 2021 when Mr Assoum was told about it by Mr Ayoub. There is also Mr Assoum’s email on that same date seeking clarification as to whether the resolution reflected the current project status. Moreover, Mr Ayoub’s internal email dated 11 November 2021, which was not challenged below, records that Piety wanted to “advance negotiations” (see at [52] above). These words and conduct strongly point to a reasonable person in Piety’s position understanding that there was not yet a binding agreement in place because further negotiations were contemplated.
Turning now to previous authorities on the particular issue of what amounts to effective communication of acceptance where the offeree is a public body, there appears to be no Australian authority which is directly in point. It is noted, for example, that no such direct authority is cited in the leading text, Nicholas Seddon, Government Contracts (6^th ed, 2018, The Federation Press) at [1.15], where the learned author discusses principles relating to government bodies entering into a contract. In brief, the ordinary rules of contract apply, with a need to pay proper regard as part of context to the legislative and regulatory framework within which a public body such as the Council operates.
The Council placed some reliance on the decision of the Full Court of the Supreme Court of NSW in Ex parte Renouf (1924) SR (NSW) 463. There, the applicant had applied to the Council of the Municipality of Waverley for approval of a plan for subdivision in accordance with the provisions of the Local Government Act 1919 (NSW) (1919 Act). The application was approved at a meeting of the Council on 1 April 1924. A notice of motion for rescission was subsequently given. On 15 April 1924, the 1 April resolution approving the application was rescinded and the application was refused. As Street ACJ observed at 466, the applicant received “no formal notification” of the 1 April 1924 decision but was formally notified of that when he received notification of the subsequent rescission decision.
There are some passages in Campbell J’s concurring judgment in Renouf which cast some light on what amounts to communication of a council’s resolution (as opposed to acceptance of an offer to contract), at least in the context of s 331 of the 1919 Act. This required the Council to “cause notice” of its decision to be given to an applicant. At 468, Campbell J said (emphasis added):

“Reading s. 331 with the necessary connotation of its several subsections, and in its necessary context, with the division in which it occurs, and also with the provisions of the ordinances relating to reconsideration of matters dealt with in past resolutions, I am led to the conclusion that approval or disapproval within the meaning of s. 331 is a composite act of which the notice is an essential part: that is to say, that the approval or disapproval is not complete for the purposes of s. 331, until notice of it has been given officially, in whatever form is usual for that purpose. Until this has been done, there does not appear to me to be a complete statutory expression of the decision that the council is called upon to give.”

In my view, having regard to the public law remedy sought in Renouf (i.e., mandamus), the case is properly regarded as one which fell to be determined by reference to public law principles, rather than contract law principles. Renouf provides limited assistance in the proceedings here.
Turning now to some overseas authorities, reference can first be made to the decision of the House of Lords in Smeaton v The Magistrates and Council of St Andrews, as Commissioners of Police (1871) 9 M. (H.L.) 24. The Commissioners had obtained a judgment approving the line of a sewer which they proposed to install through Mr Smeaton’s land. Mr Smeaton initially claimed monetary compensation, then submitted to the Commissioners a document styled “Heads of Agreement” in which he offered to waive his claim for compensation if the Commissioners agreed to change the line of the sewer. He said that if the Commissioners agreed with his proposal, a formal deed of agreement would be prepared and signed.
At a meeting of the Commissioners, it was agreed to adopt the Heads of Agreement with a slight modification. The Commissioners’ clerk was instructed to prepare a formal deed in conformity with the Heads of Agreement. Shortly thereafter, the clerk communicated the resolution passed by the Commissioners to Mr Smeaton’s agents, who responded expressing assent to the modifications. Although the Commissioners’ resolution did not expressly direct the clerk to write to Mr Smeaton, the Lord Chancellor concluded that such authorisation was implicit in the Commissioners’ instruction to the clerk to prepare a deed based upon the Heads of Agreement in conjunction with Mr Smeaton’s agents. The Lord Chancellor said that this “could not be done unless the clerk was authorised, and fully felt himself to be authorised, to make the communication, that the heads of agreement should be settled in a more formal state”.
Lord Colonsay agreed that the clerk was acting with the Commissioners’ authority and that a concluded agreement was reached by the clerk’s communications with Mr Smeaton’s agent.
Lord Chelmsford took a broader view. He considered that the effect of the Commissioners’ original resolution and the direction given to the clerk to carry out the agreement bound the Commissioners “without any formal notification of their proceedings to [Mr Smeaton]”.
Smeaton is consistent with the proposition that there must be a sufficient communication of an acceptance of an offer so as to give rise to a binding agreement. It is distinguishable on its facts, however, because of the finding that the clerk was authorised to communicate the Commissioners’ agreement. I have explained above why I agree with the primary judge that the knowledge obtained by Mr El-Cheikh of the passing of the 3 November Resolution was insufficient to constitute an effective communication.
In Powell v Lee (1908) 99 LT 284, the managers of a school passed a resolution to appoint Mr Powell as headmaster. No directions were given as to communicating the resolution to Mr Powell. Mr Powell became aware of the resolution having passed when one of the school managers, acting without any formal instruction, sent him a telegram notifying him that the school managers had selected him as headmaster. At the next meeting, it was unanimously agreed by the managers to rescind the earlier resolution. The Court of Kings Bench (constituted by Channell and Sutton JJ) concluded that there was no binding contract because the school managers responsible for passing the resolution had not communicated the passing of that resolution to Mr Powell. The mere passing of the resolution was insufficient to give rise to a concluded contract then and there. Channell J (Sutton J agreeing) said that there must be something more in terms of a “communication made by the body of persons to the selected candidate”. The communication by one of the school managers to Mr Powell was described as the act of an individual and not as an act made for the body of the managers. Channell J added that:

“…If the mere knowledge of what happened at the meeting was sufficient to complete the contract, as, for instance, if the result of the voting was overheard at the door, the matter would rest upon a different footing. But I do not think that is, sufficient to complete the contract. There must be notice of acceptance from the contracting party in some way, and the mere fact that the managers did not authorise such a communication, which is the usual course adopted, implies that they meant to reserve the power to reconsider the decision at which they had arrived.”

Powell provides some support for the proposition, which was accepted by the primary judge and with which I respectfully agree, that there must be sufficient communication by the public body concerned (or an authorised person) of the acceptance of an offer before a binding contract arises. Otherwise, however, Powell reflects its own particular facts and circumstances. The case well predates modern information technologies which enable information to be distributed, for example, by livestreaming and websites, as occurred here.
In Burr v Commissioners of Bo’ness (1896) 24 R. 148, a decision of the Scottish Court of Session, the Commissioners of a burgh resolved to increase the salary of their sanitary inspector, Mr Burr, by £10. The resolution was entered in the minute-book and, two days later, was communicated to, and approved by, the Board of Supervision. The resolution came to Mr Burr’s knowledge during conversation with the clerk of the Commissioners the day after it was passed when he attended the office, but was never formally communicated to him by the Commissioners. At a subsequent meeting, the Commissioners rescinded their former resolution. The Court unanimously found that Mr Burr had “no jus quæsitum to enforce a rise of salary”, and with separate reasons emphasised the importance of the fact that the resolution had never been officially communicated to him.
Each case necessarily turns on its own particular facts and circumstances, but Burr provides some limited assistance in resolving this aspect of the appeal in the Council’s favour.
I will now refer to a Canadian authority which addresses the question of what amounts to sufficient communication of acceptance of an offer to contract in the context of a resolution passed by a multi-member public body.
In Lanca Contracting Ltd. v. Brant County Board of Education (1986) 54 O.R. (2d) 414; [1986] O.J. No. 234, the Brant County Board of Education passed a resolution at a public meeting that the tender for the construction of a school be awarded to Lanca Contracting. A majority of the Ontario Court of Appeal (Cory JA, Finlayson JA concurring) concluded at [29] that the Board had accepted the tender offer by the resolution it passed and that notice of that acceptance had been communicated to Lanca by authorised persons. The following factors were identified by Cory JA at [27] as supporting the finding of effective communication:

“(i)   The president of Lanca was present at the meeting when the Board accepted its tender;
(ii)   The presence of Lancaster [the president of Lanca] at the meeting was known to the chairman, other members of the Board, the architect of the Board, and officers of the Board;
(iii)   Immediately following the meeting, the chairman spoke to Lancaster. Her words, taken in the context of the resolution passed at the meeting, clearly indicated that the Board had accepted Lanca's tender [at the conclusion of the meeting, the chairman approached Mr Lancaster and said to him, "[b]uild us a good school."];
(iv)   The architect of the Board spoke to Lancaster and discussed the structural drawings and arranged an appointment with him to sign the formal contract;
(v)   The controller of plant of the Board by his conversation also indicated to Lancaster that Lanca had been awarded the contract. The next day he spoke to Lanca about arrangements on the site for stockpiling salvaged material;
(vi)   The comptroller of the Board, who was authorized to sign the contract for the Board, was present and took part in the discussions with Lancaster;
(vii)   Lancaster was given an approved copy of the minutes of the Board which accepted Lanca's tender.”

The majority concluded the chairperson was clearly authorised to give notice of acceptance. They also found that there was sufficient communication of the Board’s acceptance via the Board’s architect, who was responsible for drawing up the contract documents and arranging for their execution and therefore would appear to have had authority to give notice of acceptance. Following the meeting, the architect had told Mr Lancaster that he would have the contract documents ready in two days’ time. Moreover, the comptroller of the Board, who was authorised to sign contract documents on behalf of the Board, was a party to the discussions with both Mr Lancaster and the architect. Additionally, the Board’s controller of plant was found to have given notice, by his words, to Mr Lancaster of the acceptance of Lanca’s tender. The majority concluded that, by his position, the controller of plant also would appear to have had authority to give notice of the acceptance.
There was a strong dissent in Lanca by Zuber JA. His reasons for concluding that there had not been a sufficient communication of the Board’s acceptance to Lanca are reflected in the following passages:

“[34] …In passing this resolution the Board was simply making up its corporate mind. The fact that the president of Lanca was present in the audience and overheard the process does not mean that there was any communication of the acceptance to him.
[35] In Donovan v. City of Belleville, [1931] O.R. 731, [1931] 4 D.L.R. 268 at 270-71 (Ont. C.A.) Grant J.A. said at p. 734 [O.R.]:
Upon the argument I inquired of counsel if notice might not be given to the plaintiff of the acceptance of his tender, by the passing of the resolution in open meeting, if the plaintiff were present in the council chamber and heard the resolution put and passed. Having considered the question, I have come to the conclusion that in a case in which, like the present, a document under seal is necessary in order to constitute a binding contract on the part of a municipality, no binding effect could be given to the mere passing of the resolution within the hearing of the plaintiff. Although ratepayers may be present during the deliberations of a municipal council, yet such deliberations and the discussions take place and by-laws and resolutions are passed within the council itself, the ratepayers being spectators only, their presence or absence having no legal effect upon what is being done.

[36]   I turn next to the events that followed the meeting, i.e., the statement by the chairman, "Build us a good school"; the statement by Saldarelli that things had worked out in the plaintiff's favour; and the discussions with the architect. In my respectful view, all of these "communications" fall short of being a communication of the acceptance. Communication is a necessary part of acceptance and involves more than the offeror learning that the other party has decided to take up the offer. The offeree must in some way communicate to the offeror his assent to the terms of the offer. In this case, there were a number of communications from which one could infer that an acceptance had taken place or would take place in the future but which did not amount to the expression of agreement.
[37]   I do not overlook the principle that an acceptance may be communicated by conduct. An offeree may show his intention to accept the offer and assume an obligation by acting on the offer (see Brogden v. Metro. Railway Co. (1877), 2 App. Cas. 666 (H.L.)). However, for conduct to count as acceptance, the conduct must unequivocally relate to the existence of the contract.
[38]   In my view, the conduct of the Board in this case is not so unequivocally related. The conduct in this case is equally consistent with a contract that was only expected, not made.”

Lanca well illustrates how reasonable minds can differ in assessing whether conduct or actions on behalf of a public body satisfy the need for there to be communication of acceptance of an offer so as to give rise to a binding agreement. With great respect, I consider that there is considerable force in the dissenting judgment. But like so many other cases, this decision turns very much on its own particular facts and circumstances and is not determinative of the outcome here.
For all these reasons, ground 1 is rejected.

Grounds 2 and 3

Piety contends by grounds 2 and 3 that the primary judge erred in determining that the purported agreement did not comply with the requirements of s 54A of the Conveyancing Act (see at [71] above). It submits that there should have been a finding that the Council’s signed minutes of the 3 November 2021 meeting comprised a “memorandum or note” and, further, that the signing of the minutes by the Mayor (or, alternatively, also by the General Manager) made these minutes a “memorandum or note” of a contract for sale “signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged” within the meaning of s 54A.
By operation of s 54A, no action or proceedings may be brought upon any contract for the sale of land unless the requirements of the section are fulfilled.
Strictly speaking, it is unnecessary to resolve grounds 2 and 3 of the appeal because of the rejection of ground 1. For completeness, however, and acknowledging the detailed submissions made by the parties on these grounds, I should explain why ground 2 should fail.
In my respectful view, the primary judge was correct to conclude that the draft minutes of the 3 November 2021 Council meeting which were confirmed and signed by the Mayor and the General Manager on or about 17 November 2021 did not satisfy this aspect of s 54A’s requirements.
It is significant that when the draft minutes were confirmed and signed (as required by s 375 of the LG Act), the motion for rescission of the 3 November Resolution had formally been lodged and was awaiting consideration and determination. The primary judge was correct at PJ[109] to describe as “artificial” an approach which viewed the signed minutes as recording a concluded, binding agreement. As the Council contended, this artificiality is exemplified by the following relevant background matters which are inconsistent with there being a binding agreement at that time:

the draft minutes were signed at the 17 November 2021 Council meeting after formal notice of the rescission motion had been given;

Mr Fitzgerald explained at the commencement of the meeting on 17 November 2021 why the rescission motion could not be progressed at that time;

this was because the Council was in caretaker mode because of the upcoming local government elections; and

in circumstances where the Council was in caretaker mode, the Council was not entitled to enter into a contract involving the receipt by it of an amount greater than $150,000 or 1% of the Council’s revenue from rates in the preceding financial year.

Having regard to all these relevant surrounding circumstances, it is difficult to describe the confirmed minutes as recording a confirmed or binding agreement for the sale of land in a written memorandum or note for the purposes of s 54A of the Conveyancing Act. This is a sufficient basis for rejecting ground 2.
Ground 3 relates to the claim that the primary judge erred in finding at PJ[112] that the Mayor was not lawfully authorised to confirm and sign the 3 November 2021 minutes (assuming, contrary to the above, that the minutes constituted a “memorandum or note”). Having regard to Piety’s failure to establish either ground 1 or ground 2 of the appeal, it is unnecessary to resolve this ground. Although it may seem on its face to be relatively straightforward, it is evident from the parties’ submissions that it raises some difficult and complex questions. Those questions should be resolved in a case where it is necessary to do so, unlike the case here.

Cross-appeal

Ground 1

Ground 1 of the cross-appeal effectively challenged the primary judge’s finding that the 3 November Resolution could have legal effect in the form of a collateral contract (subject to the Council’s acceptance being sufficiently communicated to Piety) (see [57]-[63] above).
The Council’s primary submission was that no binding and enforceable contract was made as a result of the 3 November Resolution having been passed and that the conduct of the parties was inconsistent with an intention to enter into a collateral contract. The Council repeated its submission made below that the case fell within the third category of Masters v Cameron, namely that it was the parties’ intention that a contract would only come into existence upon the execution and exchange of a written standard form contract for the sale of land. That intention was said to be consistent with the presumption in ordinary conveyancing practice in NSW for the sale of land, as recognised in Allen v Carbone (1975) 132 CLR 528; [1975] HCA 14 and GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634. That presumption was said to be strengthened by the significant magnitude and complexity of the transaction: Twynam Pastoral Co Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 13,448 at 13,450. The Council relied on the following eleven “indicia” in support of this submission:

The conditions of the RFX on the Council’s electronic portal (see above at [18]). The Council submitted the RFX conditions were relevant in the circumstances because Piety had expressly agreed to be bound by those conditions when participating in the negotiation process (by having ticked the acknowledgment to the login to the Council’s eProcure Portal for the negotiation phase).

The draft contract for the sale of land included the statements set out at [19] above.

The definition of “community benefit” in cl 33.1 of the special conditions in the draft contract was left blank.

The contract was incomplete in respect of an essential term, namely the means by which the Council, as a matter of conveyancing, could impose a requirement on Piety whether by way of easement or positive or restrictive covenant, to provide the car parking which it had offered to provide in circumstances where the building had not been designed or constructed. The Council relied on the primary judge’s findings at PJ[100]-[101] in support of this submission.

The draft contract had an execution page for each party to sign and the form to be uploaded at both the tender and negotiation phase included the vendor's execution schedule.

The draft contract put forward by Piety at the negotiation phase included a note titled “Amendments to Contract”, which stated “[t]hese special conditions are subject to further amendments to reflect the agreed commercial terms between the purchaser and vendor”.

The parties contemplated as part of the negotiation phase that the nature of the community benefit would be determined, namely which portion of the site would be dedicated to the Council for car parking, by reference to Piety’s statement to this effect in its RFX Offer Form submitted through the Council’s portal.

In both Piety’s earlier offers made on 8 April 2021 and its final and best offer on 4 October 2021, the date on which cash payment was to be made was expressed in terms of a specified period of time “after exchange of contract”.

A reasonable person in the circumstances of the parties would understand that the draft minutes uploaded to the Council’s website did not constitute binding acceptance of an offer to enter into a contract. Counsel emphasised such minutes were in draft form because they had not yet been confirmed and signed at a subsequent meeting in accordance with s 375(2) of the LG Act and the Code. Clause 19.7 of that Code provided that unconfirmed minutes may be published on the Council’s website and Mr Ayoub’s evidence confirmed that it was the Council’s standard practice to do so.

As to the signed minutes of the 3 November 2021 meeting, a reasonable person in the circumstances of the parties would treat them as being qualified and subject to the rescission motion being dealt with for two reasons. First, the Council contended Piety had actual knowledge by reference to the email set out at [52] above. Secondly, prior to the minutes being confirmed at the next council meeting on 17 November 2021, Mr Fitzgerald announced that the rescission motion could not be dealt with at that meeting because the Council had entered into a caretaker period and was seeking advice as to when it could consider such motion.

The resolution was nothing more than an expression of the Council's will coupled with an implicit grant of authority to Council officers to make the necessary formal communication to Piety (which never occurred) and a delegation of authority to the General Manager to execute the documents. The Council relied on the primary judge’s findings at PJ[93]-[94] in support of this submission.

As discussed above, the collateral contract was contended by Piety to have been made on 9 November 2021, when the minutes came to its attention. Counsel for Piety contended that the case fell in the fourth category of Masters v Cameron, namely that the parties agreed to enter into an immediately binding contract with a later contract to supersede or replace the earlier contract to be exchanged in due course, relying on Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622. It submitted that the ordinary conveyancing presumption relied on by the Council therefore did not apply in the circumstances and was nevertheless displaced.
Contrary to the Council’s contention the contract was incomplete and uncertain, Piety submitted that its offer included all the essential terms, including the definition of “community benefit”, which was contained in the body of its email dated 4 October 2021 set out at [28] above. Piety submitted the RFX conditions relied on by the Council were irrelevant because the negotiations were no longer being conducted as part of the tender process. In support of that submission Piety contended the primary judge made a finding at PJ[75] that the negotiations were not being conducted as part of a tender process and rather constituted direct contractual negotiations. Furthermore, Piety submitted the RFX conditions lacked meaningful application because they only applied to a contract in respect of “Services/Works”, which was an undefined term, and constituted “a generic template” which had not been adapted to the contract that was the subject of negotiation between the parties (which was said to be a matter that the Council had been specifically advised of by its solicitors).
As to the statements prefacing the draft contract (set out at [19] above), Piety submitted this was a mere formality of reflecting what had already been agreed and that the parties would need to make changes/amendments to the draft contract to align with the offer made, for example to the terms of the community benefit.
I have attempted to summarise the parties’ primary submissions on ground 1 of the cross-appeal. I shall now explain, however, why I consider it both unnecessary and inappropriate to express a final view on this ground.
As noted above, the primary judge did not make an unequivocal finding that there was a binding collateral contract as asserted by Piety. Rather, implicitly assuming in Piety’s favour that the Council accepted Piety’s best and final offer by passing the 3 November Resolution, his Honour found that no binding collateral agreement came into existence because the Council’s acceptance of that offer was not sufficiently communicated to Piety. Piety’s challenge to that conclusion, as raised by ground 1 of its appeal has been rejected.

In these circumstances, it is neither necessary nor appropriate to determine ground 1 of the cross-appeal. Even if it that ground were upheld (and I express no view one way or the other on the merits of the ground nor the significance of the fact that at least part of the ground relates to claims which were not the subject of submissions below (see further at [69] above)), it would not alter the relevant order made by the Court below in dismissing Piety’s claim in contract. The resolution of the issues raised by ground 1 of the cross-appeal should await a case in which the outcome will be affected by those issues. That is not the case here.

Ground 2

The Council’s primary submission in relation to ground 2 of the cross-appeal was that the 3 November Resolution could not create a binding contract between the parties because it was subject to the rescission motion. In support of this ground, the Council relied on its earlier submission at [139(10)] above in relation to ground 1 of the cross-appeal. As discussed by the primary judge at PJ[85], the Council contended Piety must be taken to have known it was dealing with a local council with express statutory powers to rescind any resolution it might pass, at least until that resolution had been formally communicated to it. Therefore, unless and until Piety was formally notified of the passing of the 3 November Resolution (which never occurred), the Council submitted Piety could not have reasonably formed the view that such resolution was a final and binding one.
In such circumstances, the Council contended that it was obliged under s 372 of the LG Act and pt 17 of its Code to consider and determine the rescission motion and that Piety had no legal basis to prevent it from determining such motion, relying on Renouf and Keough v Corporation of the City of Burnside (1992) 75 LGRA 163 at 176.
Contrary to the Council’s submission, Piety contended that the existence of the Council’s power to vote on and pass a rescission motion should not affect the determination of the question of whether a contract existed between the parties. In circumstances where a binding contract had been made, Piety submitted that the Council’s power to rescind should be considered to amount to no more than “the equivalent of a natural person changing their mind and repudiating a contract”.
For similar reasons to those given above concerning ground 1 of the cross-appeal it is both unnecessary and inappropriate to determine ground 2 of the cross-appeal and I decline to do so.

Ground 3

Ground 3 challenges the part of the No 1 judgment that dismissed prayers 1 and 2 of the relief sought by the Council in its cross-summons below. By prayers 1 and 2, the Council sought declarations to the effect that the Land was “community land” from 1 July 1993 as it was “land subject to a trust for a public purpose” within the meaning of that phrase in cl 6(2)(b) of Sch 7 of the LG Act. This was said to have the effect that the Council could not sell the Land unless and until it was reclassified as “operational land” under that Act.
Needless to say ground 3 of the cross-appeal advances a position belatedly adopted by the Council which is squarely inconsistent with the position it evidently held when it conducted the tender and subsequent negotiation processes culminating in the 3 November Resolution.
If ground 3 of the cross-appeal is resolved in favour of the Council it would likely provide a complete answer to Piety’s claim for specific performance of the alleged contract. That claim would be defeated if the Council had a valid defence that it was powerless in law to sell the Land because it was community land. Presumably this is the reason why the issue whether or not the Land was community land was addressed and determined as a preliminary and separate question, which resulted in the No 1 judgment.
I will now explain why ground 3 should be rejected.
In 1965, the Council’s predecessor had acquired the Land by resumption under s 532 of the 1919 Act. Below and on appeal, the Council submitted that the resumption was for the public purpose of constructing a carpark which was sufficient to attract the classification as “community land” and a finding that a trust operated to restrict any dealings with it.
The Council contended that the Land was “community land” in circumstances that were “relevantly identical” to those considered in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 (PWC Properties). There, the High Court determined certain land could not be sold because it was subject to a “trust for a public purpose”.
I am not persuaded that the circumstances here are, in fact, relevantly identical. There are at least two key points of distinction.
First, the land in PWC Properties was acquired by the Bathurst City Council under s 526 of the 1919 Act, which provided:

The council may—
(a) accept and hold any real or personal property conveyed, assigned, devised, or bequeathed to it for any charitable or public purpose;
(b) act in the administration of such property for the purposes and according to the trusts for which the same may have been conveyed, devised, assigned, or bequeathed.

Section 532(1), under which the Land was resumed in 1965, provided:

The council may acquire land within or outside the area for any purpose of this Act by lease, purchase, appropriation, or resumption in accordance with this Part.

In 1965, the resumption notice was published in the NSW Gazette for Land. This attracted the operation of s 536A of the 1919 Act, which provided:

Upon publication in the Gazette of any such notice and description, the land therein described shall, for the purposes and subject to the provisions of this Act, be vested in the council for an estate in fee simple in possession freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights of way, or easements whatsoever.

The land in PWC Properties was “accepted” by Bathurst City Council under s 526. In contrast, the Land here was “acquired” by the Council under s 532 (see at PJ[111]). The statutory history and operation of s 526 in PWC Properties created the conditions for the existence of a trust for a public purpose. Accordingly, that land was to be treated as “community land” under cl 6(2)(b) of Sch 7 of the LG Act. I do not understand this to be the case for land resumed under s 532.
Secondly, and relatedly, it was ultimately in light of s 526 and not equity at large that founded a trust for public purpose in PWC Properties. As the South Australian Court of Appeal observed in Duke Unley Pty Ltd v The Corporation of the City of Unley [2021] SASCA 91:

“[71] If equity recognises a separate species of trust being a public trust as defined by Duke, it may be expected that this species of trust would have been explicitly recognised by the High Court in Bathurst and recognised in other cases. It may also be expected that its elements would have been determined. However, there is no case cited by Duke in which this has occurred.”

The Council contended that Duke Unley had limited relevance to the cross-appeal as it was “argued on an entirely different basis”. This contention overlooks the emphasis placed by the Court in Duke Unley at [70] on the significance of the fact that, in PWC Properties, the Council held the relevant land for a “public purpose” pursuant to s 526 of the 1919 Act and that this was “an essential step” in the High Court’s reasoning. This highlights the importance of focusing close attention on the terms of a particular statutory provision empowering the acquisition of land by a local government body.
I do not accept the Council’s contention here that the “only relevant difference is that there was a compulsory resumption of the land as distinct from a sale for a specific public purpose”. This contention fails to take into account the effect of s 536A of the 1919 Act (see at [159] above). This provided that any land resumed by a council would be freed of all manner of prior interests, easements and/or rights etc.
For these reasons Ground 3 of the cross-appeal should be dismissed because the Land here was not subject to a “trust for a public purpose” as provided for in cl 6(2)(b) of Sch 7 of the LG Act. The Council remains the registered proprietor of the Land which it holds in fee simple and is not community land.

(e) Conclusion

For the reasons given above, I propose the following orders:

Dismiss the appeal.

Order the appellant to pay the respondents’ costs of the appeal.

Dismiss the cross-appeal.

Order the cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

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Decision last updated: 23 July 2024

Medium Neutral Citation:	Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 173
Hearing dates:	10 May 2024
Decision date:	23 July 2024
Before:	Payne JA at [1]; Adamson JA at [2]; Griffiths AJA at [3]
Decision:	(1) Dismiss the appeal. (2) Order the appellant to pay the respondents’ costs of the appeal. (3) Dismiss the cross-appeal. (4) Order the cross-appellant to pay the cross-respondents’ costs of the cross-appeal.
Catchwords:	CONTRACTS – Formation – acceptance of offer – whether there was sufficient communication of acceptance – where the respondent Council had passed a resolution accepting the appellant’s offer during a Council meeting which was open to the public and livestreamed on its website and published a copy of the unsigned minutes of the meeting (which recorded that such resolution was passed) on its website the following day – where a rescission motion was lodged in respect of that resolution shortly after the meeting ended and the Council took no steps to notify the appellant that such resolution had been passed or to otherwise directly communicate its acceptance of the offer to the appellant – whether the legislative and regulatory framework affecting the Council’s operations were matters of context relevant to the objective assessment of whether there was effective communication of acceptance LAND LAW – Conveyancing – Requirements of Writing – whether the signed minutes of the Council meeting comprised a “memorandum or note” of a contract for sale for the purposes of s 54A of the Conveyancing Act1919 (NSW) – whether the mayor and general manager who signed the minutes were lawfully authorised signatories pursuant to s 54A LOCAL GOVERNMENT – whether land acquired by resumption under s 532 of the Local Government Act 1919 (NSW) was “land subject to a trust for a public purpose” and therefore should be classified as “community land” for the purposes of cl 6(2)(b) of Sch 7 of the Local Government Act 1993 (NSW)
Legislation Cited:	Conveyancing Act 1919 (NSW), s 54A Local Government Act 1919 (NSW) ss 331, 526, 532, 536A Local Government Act 1993 (NSW), ss 9, 10, 10A, 220, Ch 12, ss 360, 367, 371, 372, 375, Sch 7 cl 6(2)(b) Local Government (General) Regulation 2005 (NSW), Pt 7, reg 178(3)(e) Local Government (General) Regulation 2021 (NSW), reg 178(1)(a), (3)(e), reg 232, reg 393B
Cases Cited:	Air Canada v Evans [2024] NSWCA 153 Allen v Carbone (1975) 132 CLR 528; [1975] HCA 14 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Burr v Commissioners of Bo’ness (1896) 24 R. 148 Duke Unley Pty Ltd v The Corporation of the City of Unley [2021] SASCA 91 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Ex parte Renouf (1924) SR (NSW) 463 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Keough v Corporation of the City of Burnside (1992) 75 LGRA 163 Lanca Contracting Ltd. v. Brant County Board of Education (1986) 54 O.R. (2d) 414; [1986] O.J. No. 234 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Meates v Attorney-General [1983] NZLR 308 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 PietyDevelopments Pty Ltd v Cumberland City Council(No 2) [2023] NSWSC 774 Powell v Lee (1908) 99 LT 284 Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 406 ALR 678 Smeaton v The Magistrates and Council of St Andrews, as Commissioners of Police (1871) 9 M. (H.L.) 24 Twynam Pastoral Co Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 13,448 Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32
Texts Cited:	JD Heydon, Heydon on Contract: The General Part (2019, Thomson Reuters) JW Carter, Contract Law in Australia (8th ed, 2023, JW Carter Publishing) Nicholas Seddon, Government Contracts (6th ed, 2018, The Federation Press)
Category:	Principal judgment
Parties:	Piety Developments Pty Ltd (Appellant/First Cross-Respondent) Cumberland City Council (First Respondent/Cross-appellant) Bilal El-Cheikh (Second Respondent/Second Cross-Respondent)
Representation:	Counsel: F Corsaro SC/A Rizk (Appellant/Cross-respondent) A McInerney SC/D Robertson (Respondent/Cross-appellant) Solicitors: Darby Jones (Appellant/Cross-respondent) McCabes (Respondent/Cross-appellant)
File Number(s):	2024/14852
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: Piety Developments Pty Ltd v Cumberland City Council [2023] NSWSC 480; Piety Developments Pty Ltd v Cumberland City Council (No 3) [2023] NSWSC 1627 Date of Decision: 5 May 2023; 19 December 2023 Before: Parker J File Number(s): 2022/38975