Robles and Moser v Pigg
[2014] VCC 1127
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
COMMERCIAL LIST
GENERAL CASES DIVISION
Case No. CI-13-05335
| LUIS PATRICK ROBLES & SALLY THERESE MOSER | Plaintiffs |
| v | |
| JESSICA VERE PIGG | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 -10 July 2014 | |
DATE OF JUDGMENT: | 1 August 2014 | |
CASE MAY BE CITED AS: | Robles & Moser v Pigg | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1127 | |
REASONS FOR JUDGMENT
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Subject: AGENCY, CONTRACT
Catchwords: AGENCY – Scope – Express and implied authority.
CONTRACT – Sale of land – Whether offer to purchase land accepted by vendor – Method of communication of acceptance.
CONTRACT – Specific performance.
CONTRACT – Formal requirements – Written note or memorandum – Instruments Act 1958 (Vic) s126 – Property Law Act 1958 (Vic) s53(1)(a) – Signature – Electronic Transactions (Victoria) Act 2000.
Legislation Cited: Electronic Transactions (Victoria) Act 2000; Instruments Act 1958 (Vic); Property Law Act 1958 (Vic).
Cases Cited:Ballas v Theophilos(No 2) [1958] VR 576; Ballas v Theophilos(No 2) (1957) 98 CLR 193; Durrell v Evans (1862) 158 ER 848; Fitzwood Pty Ltd v Unique GoalPty Ltd [2000] FCA 36; Giasoumi v Hutton (Unreported, Supreme Court of Victoria, Lush J, 6 April 1977); Giasoumi v Hutton (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Gillard and Anderson JJ, 29 November 1977); Harvey v Edwards Dunlop & Co Ltd (1927) 39 CLR 306; Neill v Hewens (1953) 89 CLR 1; Russells v McCardel & Ors [2014] VSC 287; Rymark Australia Development Consultants Pty Ltd v Draper [1977] Qd R 336; Stuart v Hishon [2013] NSWSC 766.
Judgment: Judgment for the plaintiffs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Isles | Geoffrey Grantham & Associates |
| For the Defendant | Mr J K Arthur | Mackinnon Jacobs Lawyers |
HIS HONOUR:
1 In this case, the plaintiffs as purchasers seek specific performance of an alleged agreement with the defendant to sell the property at 130 Huxtable Road, Upper Beaconsfield, in Victoria (“the property”).
Background
2 This case is unusual to the extent that the parties have agreed upon most facts and documents relating to the dispute.
3 Pursuant to an enduring power of attorney (financial) made on 6 March 2012, the defendant, Raymond Pigg, appointed his daughter, Jessica Vere Pigg (“Pigg”), as his attorney, and authorised her to do anything on his behalf which he might lawfully authorise an attorney to do. The power of attorney commenced with immediate effect from the day it was made.
4 On about 14 June 2013, Pigg appointed Finning & Company Pty Ltd, trading as Finning First National Real Estate (“Finning”), as the exclusive real estate agent to sell the property. John Tucker (“Tucker”) is the principal of Finning. Jason Brown (“Brown”) is a salesperson employed by Finning. Pursuant to the sale authority document, Pigg instructed the agent to sell the property pursuant to an expression of interest process. The closing date for the sale was 9 August 2013.
5 For reasons which were not clear, Pigg did not proceed with the expression of interest process to sell the property. On 12 August 2013, she emailed Tucker and instructed him to market the property for private sale at a price of $549,950.
6 At 11.51am Australian Eastern Standard Time (“AEST”) on 15 August 2013, Tucker emailed Pigg to confirm that the property was now listed for private sale with an asking price of $549,950. Tucker said, amongst other things, that:
“I sincerely believe that any offers received above say the $520,000 mark, depending on timing and conditions, would be well worthwhile seriously considering Jessica.”
7 On 15 August 2013 at 2.12pm AEST, Pigg replied to Tucker stating:
“Hi John,
I’m having an extremely bad feeling about this, and feel that I have made the wrong decision to list it at that price.
I really wouldn’t accept below that price so feel that it should be listed at $599,000. After all you can always bring a price down.
Is there anything that can be done?
I shouldn’t have emailed you without speaking to you first. My fault of course.
Jessica.”
8 On 15 August 2013 at 8.38pm AEST, Tucker emailed Pigg as follows:
“From all of the feedback that we have received on the property, we still believe our original estimate of the likely selling price in the current market is correct, i.e. $500,000-$550,000.
Our recommendation earlier this week to market it at the top end of this range was designed to maximise your opportunities to achieve the sale at the highest possible price.
If your instructions are that this is the minimum price that you hope to achieve, then we need to price the property at a margin above this – say $564,950 – to allow some room for movement, but so as not to totally frighten potential buyers away.
Your thoughts that ‘you can always come down’ are certainly valid, but we would suggest that to price the property at $50,000 above the top end of its likely selling range will not achieve what you were trying to do and will almost guarantee that your genuine buyer enquiry will cease.
This is not what you want to happen as it will just turn the property into a ‘lemon’ and in the end leave you in the same position as you were at the beginning of the year and all of your efforts to date are unlikely to give you the end result you are hoping to achieve.
I will have a talk with Jason tomorrow and see what his thoughts are. If we can achieve a good offer from his current people we will certainly let you know, but in the end it is totally your decision as to whether to consider it.
In the meantime, please consider my thoughts and advice above and let me know your decision as to the asking price as soon as you can so we can adjust it on the web in line with your instructions.”
9 On 16 August 2013, the plaintiffs made an offer in writing to purchase the property for $531,500. They made the offer by sending to Finning a signed copy of the Real Estate Institute of Victoria Standard Form Contract of Real Estate (“the REIV contract”). The plaintiffs also paid an initial deposit of $2,000 and received a receipt for this amount from Finning.
10 On 19 August 2013, Finning received offers from two other parties to purchase the property.
11 On 19 August 2013, at 12.48pm AEST, Tucker advised Pigg that there were now three offers for the property. Tucker was keen to speak to Pigg directly so he could make sure that she understood her options and he could address any queries which she had.
12 On 20 August 2013, Tucker advised Pigg by email of the comparative merits of the three offers. Near the end of the email, Tucker invited Pigg to examine the analysis he had prepared and make a note of anything which was not clear. Tucker and Pigg spoke later the same day on the telephone. During the call, Pigg advised Tucker that she wanted an extra day or two to consider the offers.
13 On 21 August 2013 at 11.21am AEST, Tucker emailed to Pigg the second of the offers received to purchase the property for $537,502. Tucker attached the first three pages of the REIV contract signed by the makers of the second offer. At the time, it was this offer which Tucker recommended Pigg should seriously consider. Tucker said that he had scanned the first three pages of the contract and attached them for her information and signature, if agreeable, and return to Finning.
14 Tucker set out in the email the procedure which he required Pigg to follow regarding the execution and return of the contract. He also sent with the email a low resolution scan of the contract pages with annotations on them, indicating where Pigg needed to sign and initial the contract if everything was in order. Tucker said that on page 1, Pigg needed to sign and date her acceptance as vendor and to write the words as shown to confirm her authorisation to sign as the financial power of attorney on behalf of her father. Tucker said that on page 2, Pigg just needed to initial beside the price details and beside the altered date for settlement. On page 3, Pigg only had to initial the top and bottom of the page. Tucker then advised that:
“Once you have signed and initialled as indicated the contract and all is in order, if you are able to scan the three pages and email them back to me, or fax them on +61359961445, then we can confirm the transaction with the buyers and you can relax at last.”
15 Tucker also made some comments relating to the discussion he had with Pigg regarding the value of the property and its possible future use. He said:
“You commented last night Jess on your thoughts of previous values of the property to now. I think what is important to accept is that then the house was lived in and was a home, whereas today it is only a shell of its former glory and some potential purchasers find it hard to add much value to the dwelling on the property and are concerned at the significant cost to restore the house to a liveable condition.
If left unoccupied and unmaintained, it is only going to deteriorate even further over time until it will become a considerable detriment to the value of the property rather than an asset.
The cost to you to maintain the property and restore the house (to say nothing of the stress and the time commitment involved) would be huge and in the end the net result when the property was eventually sold would be highly unlikely to result in a better net financial outcome for you and your dad.
I think your decision to sell the property on today’s market at the best price is the right one for all concerned.”
16 By email sent at 12.47pm AEST on 21 August 2013, the plaintiffs advised Brown that they were prepared to pay $541,000 with an unconditional contract for the property. The plaintiffs said to Finning:
“Please add into the contract that the offer is conditional on it being agreed and signed off by the vendor by close of business on Friday.
This offer will remain in place until the close of business (5pm) on Friday of this week after which time both offers are withdrawn. I trust that the amended offer will be conveyed immediately to the vendor.”
17 Tucker advised Pigg of the new offer from the plaintiffs by email sent on 21 August at 4.11pm AEST. Tucker noted that the new offer of $541,000 was payable by deposit of $35,000 by 30 August (of which $2,000 had already been paid and was held on trust). The proposed settlement date was 23 January 2014. Tucker provided a comparative analysis of this new offer from the plaintiffs against the offer which had been previously recommended from the second offerees. Tucker explicitly noted that:
“The party who have increased their offer (#1) have told us that it will only remain valid until 5pm Friday (Melbourne time) and then will automatically lapse. So if you did want to accept their new offer, we would need to get you a contract to sign prior to that time. Jason is getting them to sign amended contracts tonight to reflect the new price and settlement date so we will have them on hand by tomorrow should you want us to scan them and email them to you.”
18 By email sent at 4.19pm AEST on 21 August 2013, the plaintiffs returned the revised contract to Finning. They noted that the signed contract was valid until the close of business at 5.30pm on Friday, 23 August 2013. They said that they had found the negotiations to be a long, drawn out process and were afraid that they would walk away from the purchase after that time.
19 By email sent at 11.54am AEST on Thursday 22 August 2013, Tucker advised Pigg of the new offer from the plaintiffs and explained his reasons for regarding the offer as an attractive option for Pigg. Not only had the purchase price increased, but the plaintiffs were offering to clean up the property for the vendor after Pigg had taken any items of value which she wished to keep. The plaintiffs also offered to run some horses on the property prior to settlement in order to keep the grass down, thereby reducing Pigg’s concerns regarding maintenance of the property. Tucker sent to Pigg, as part of the email, the first two pages of the revised contract of sale document.
20 By email sent at 12.11pm AEST on 22 August 2013, the plaintiffs advised Brown that they would pay Pigg’s asking price of $549,950. Brown sent the plaintiffs a new contract of sale at 2.57pm AEST. The plaintiffs returned the completed document to Brown by email at 4.53pm AEST on 22 August 2013.
21 By email at 5.45pm AEST on 22 August 2013, Tucker advised Pigg that the plaintiffs had now made a new offer to purchase the property for $549,950 with settlement on 23 January 2014. Tucker expressed the view that this was an outstanding outcome which he encouraged Pigg to seriously consider. Tucker said that the offer was certainly better than he had envisaged at the commencement of the process and represented a great result for both Pigg and her father.
22 Tucker attached the first three pages of the REIV contract of sale signed by the plaintiffs for Pigg’s information and asked that she ignore the copy sent earlier in the day at the lower price. He said that when Pigg was ready to countersign the contract she should look at his instructions from a couple of days ago and sign and initial this copy document in the same places and return the document to him by scanning it and emailing it to him or faxing it. She should then place the signed original in an air express bag to return to Australia.
23 Tucker expressed the opinion that the contract had to be dated and her acceptance conveyed back to the purchaser before 5pm on Friday 23 August 2013. If this did not occur, the contract would become null and void and would have to be redrafted and resigned by both parties if they agreed to proceed.
24 At 9.30pm AEST on 22 August 2013, Tucker emailed Pigg again to advise her that it was important if at all possible, that he speak with her that night as he could not keep faith with the plaintiff purchasers for much longer. He said that they were very genuine people and had agreed to pay the full asking price, as well as helping Pigg out with the clean-up and maintenance. He said that their offer would lapse tomorrow at 5pm if he had not heard from Pigg, and he was afraid that he would lose the purchasers for her. In Tucker’s view, this would have been a dreadful shame, as their offer was an excellent one.
25 Shortly after 9.30pm AEST on 22 August 2013, Pigg telephoned Tucker and advised him that she wanted more time to think it through and discuss it with her advisers.
26 On 23 August 2013 at 12.17pm AEST, Tucker received an email from Pigg which stated as follows:
“Hi John
I will accept the offer but I’m having difficulty scanning the contract. I will have to do it tomorrow which means you would have it by Saturday morning.
I hope this is ok.
Jessica.”
27 Tucker responded by email sent at 12.42pm AEST on 23 August 2013. Pigg received it at about 3.42am London Time. Tucker said that he thought it was good news that she accepted the offer and he was absolutely certain it was the right decision for her. He said that she was doing the right thing by herself and her father and that it was a great outcome for her. He advised that Finning would phone the purchaser then and confirm acceptance of the offer. He said he was sure that the purchasers would also be delighted.
28 With respect to the contracts, Tucker advised that the most important thing was for her to sign and date them with “today’s date (Friday)” as indicated in his earlier email. He said that if Pigg was having difficulty with scanning, then she should find a friendly fax or maybe a post-office in the morning, and fax the contract to him. He said that this would suffice for the initial exchange. He said that she could then post the originals to him as soon as she could, and after he received them early the following week, the formal exchange of contracts could take place.
29 At 1.11pm AEST on 23 August 2013, Brown emailed the plaintiffs to advise that Pigg, “has signed and accepting (sic) your offer”. Brown pasted into the email the email which Pigg had sent Tucker at 12.17pm Melbourne time. Brown advised that Finning was still waiting on the contract to come through, as Pigg was having difficulty scanning it. Brown offered his congratulations to the plaintiffs.
30 At 11.15am AEST on Saturday, 24 August 2013, Tucker received an email from Pigg in which she said that although she was extremely embarrassed to be acting in this way, she could not accept the offer because she could not live with herself if she sold the property at this price. She asked Tucker to remind her what she owed for marketing costs so that she could arrange for payment immediately.
31 At some point on Saturday, after receipt of this email, Finning advised the plaintiffs that Pigg did not intend to proceed with the sale. At 4.29pm AEST on 24 August, the plaintiffs emailed Brown to advise him of their upset at Pigg’s conduct. They advised that they had received legal advice from their solicitor that a contract had been entered into and, accordingly, they would be pursuing the sale of the property to settlement.
32 On 29 August 2013, the plaintiffs paid the balance of the deposit moneys to Finning, being an amount of $33,000.
33 By letter dated 2 September 2013, the plaintiffs’ solicitors wrote to Pigg’s solicitors, alleging that the selling agent communicated the plaintiffs’ offer to Pigg on 22 August, and advised the plaintiffs the following day that the vendor had accepted the plaintiffs’ offer. The solicitors advised that the property had been sold and the plaintiffs expected Pigg to complete the sale. The solicitors asked for the contract of sale signed by Pigg within seven days and sought confirmation that the property would be transferred to the plaintiffs in accordance with the contract. In the same letter, the plaintiffs’ solicitors included a copy of the caveat lodged by them on the property.
34 By letter dated 3 September 2013, Tucker wrote to the plaintiff’s solicitors effectively explaining the chronology of events as it appeared to him. Tucker referred to the receipt of the email from Pigg at 12.17pm on 23 August, and Finning then emailing the acceptance of the offer to the plaintiffs to avoid any chance of the contract lapsing on the Friday afternoon. Tucker said that the following day he expected to receive a scanned copy of the contract signed by Pigg and not the email advising that she had changed her mind. Tucker confirmed he held the full deposit of $35,000 in trust and invited the plaintiffs’ solicitors to contact him if he had any further queries or sought additional information.
35 On 9 September 2013, Pigg’s lawyers, McKinnon Jacobs Lawyers, wrote to Finning instructing it to return the deposit monies to the plaintiffs.
36 On 17 September 2013, Tucker emailed the second plaintiff a copy of the email from Pigg in which she advised Tucker that she could not accept the plaintiffs’ offer. By way of covering email, Tucker said he was shocked to receive Pigg’s email on the Saturday morning after her email regarding acceptance of the offer, which was received on the Friday afternoon. Tucker informed the second plaintiff that he would continue to hold the deposit in trust pending further instructions and hopefully, a satisfactory resolution.
Issues
37 The primary issues in this case are whether:
(a) there is a binding agreement between the parties for the sale of the property; and
(b) if so, ought such agreement be specifically performed.
Plaintiffs’ submissions
38 The plaintiffs contend that there is a binding agreement between the parties. There was a standard form of contract signed by the plaintiffs which contained all the relevant terms: parties, property, price and payment terms. It represented the offer made by the plaintiffs to purchase the property. Then, within the period specified for accepting the offer, Pigg told Tucker (at Finning) that she would accept the offer but she was having difficulty scanning the contract. Accordingly, she said that she would scan it to Tucker on Saturday, 24 August 2013 (Melbourne time). As one would expect, Finning, as the agent, informed the plaintiffs promptly of Pigg’s email by sending them a copy and telling them that Pigg had signed and was accepting the offer. So from the plaintiffs’ perspective, their offer had been agreed and signed off by Pigg.
39 The plaintiffs contended that this summary of the facts constituted a binding agreement to sell the property and that Pigg’s change of mind to avoid the sale was of no effect.
Defendant’s submissions
40 The defendant’s position was that the plaintiffs’ claim cannot succeed. The defendant contended that:
(a) no contract for the sale of the property was ever made or concluded between the parties. The defendant argued that the parties did not intend that a binding contract come into existence unless and until before 5pm or 5.30pm on 23 August 2013:
(i) Pigg signed the plaintiffs’ offer; and
(ii) returned the signed copy of the offer to Finning by email, fax or post (so that the agent could then advise the plaintiffs of the offer’s acceptance.)
Pigg said that she never signed the offer nor returned it to Finning. This was the only way in which the plaintiffs’ offer was capable of acceptance;
(b) the email Pigg sent to Tucker at 12.17pm AEST on 23 August (or 3.17am London time), could not constitute an acceptance of the offer because:
(i) the email indicated a future, not a present intention to accept the offer;
(ii) any putative acceptance was in different terms from those proposed by the plaintiffs – the signed document could not be sent to Melbourne until Saturday, 24 August, after expiry of the Friday evening deadline;
(c) there was no written note or memorandum of any agreement signed by Pigg for the purposes of section 53(1)(a) of the Property Law Act 1958 (Vic) and/or section 126 of the Instruments Act 1958 (Vic), or by any person lawfully authorised in writing. The email was not signed by Pigg, whether pursuant to the Electronic Transactions (Victoria) Act 2000, or at all.
Credit
41 The only witness to give evidence was the holder of the defendant’s power of attorney, Pigg. Pigg’s demeanour in the witness box did not inspire confidence in the truth of her evidence. I considered that parts of her evidence were unconvincing and lacking credibility.
42 There were several aspects of Pigg’s evidence which caused me concern.
43 First, I note her explanation for the wording used in the email she sent to Tucker at 12.17pm AEST on 23 August 2013. Pigg said that she was told that the printer/scanner machine at her home in London was not working on 22 August. She said she did not try to print out the contract document signed by the plaintiffs with the offer of $549,950 which Finning had emailed to her earlier. Pigg said it was unfortunate that in her 12.17pm email she used the word “scanning” rather than “printing”. Pigg understood the difference between the words, but said that the machine was called the “scanner” and insisted she did not print the contract note.
44 I did not find her explanation credible, much less compelling. Her email to Tucker did not refer to the printer or the scanner, but to a particular function of the machine. There was no obvious reason for confusing the two functions – especially in circumstances where Pigg had relevant technological knowledge (her web-related work) and understood the clear difference between the two functions. Pigg did not even know herself which, if any, function was not operative – she said that she relied upon what a friend told her. In my view, the explanation was weak and did not adequately explain the terminology used in the document. This matter is dealt with at greater length below.
45 Secondly, Pigg claimed that she did not “in her wildest dreams” think that the agent would convey to the plaintiffs the substance of the email she sent Tucker at Finning at 12.17pm on 23 August 2013. If the agent’s role were not to act as the go-between to secure a sale of the property and, as part of that, to convey offers and information between the plaintiffs and Pigg, then what was the agent’s role?
46 It beggars belief that someone in Pigg’s position could think that the agent would not tell the plaintiffs of Pigg’s response to their offer especially when the period for acceptance was due to expire later that very day.
47 Again, if:
(a) it never occurred to Pigg that Finning would advise the plaintiffs of the detail (or even the gist) of her response to their offer; and
(b) she never authorised or gave permission to Finning to send to the plaintiffs the email of 23 April 2013 at 1.11pm AEST
then it seems odd that Pigg did not remonstrate either on the phone or by email with Finning or Tucker when she later saw the email in which Tucker said he would phone the plaintiffs and confirm Pigg’s acceptance of their offer. I regard her conduct as inconsistent with the position she has adopted at trial regarding the dispute.
48 Thirdly, Pigg agreed that between her email sent on 23 August 2013 at 12.17pm AEST and her email sent on 24 August 2013 at 11.15am AEST, she changed her mind about accepting the plaintiffs’ offer. One reason for the change of decision was her view that the sale price should have been greater. She said, in addition, there were other reasons, namely, her concern about whether she should sell at all or at the particular time. Nonetheless, she accepted that no one lived in the property.[1] Her mother had died in 2005 and her father was in a nursing home suffering from Alzheimer’s Disease. Although Pigg thought the sale price should have been greater, she said that she had not thought about whether she would have been content to sell at $600,000 or $1 million. She said that she had not thought about any figure at which she would have sold the property.
[1]I note also that Tucker said the property was only a shell of its former glory, and it would cost a significant sum to restore the home to a liveable condition – see paragraph 15.
49 Late in her evidence, Pigg said that the sale price was relevant to her change of mind but she said that she did not have the opportunity to think about price at that time. Pigg said she thought the asking price was too low from the outset, and that fact contributed to her misgivings about the sale.
50 It seems to me that if a person in Pigg’s position had concerns from the beginning of the sale process about the proposed price, then it is very likely that she did think of a higher figure at which she would have been willing to sell.
51 I consider it unrealistic to say, in effect, that the inadequate sale price was a factor in seeking to avoid the sale but simultaneously claiming not to have given any consideration to what constituted an acceptable sale price. This is especially the case if the misgivings as to price had been present since the beginning of the sale process. Pigg had ample opportunity between June and August to consider the issue. If Pigg had misgivings about the sale price sought, and she decided that ultimately she was unable to live with herself if she sold the property for $549,950, then I do not accept her evidence that she had not given some thought to a figure which would have been acceptable.
52 Fourthly, the agreed statement of facts said that, in the phone call between Pigg and Tucker at around 9pm on 22 August 2013, Pigg told Tucker that she wanted more time to think the matter through and discuss it with her advisers. However, in her evidence, Pigg stated expressly that she had no advisers. I do not imagine that Pigg’s legal representatives consented to the submission of the list of agreed facts and documents to the court without obtaining Pigg’s approval. Accordingly, if this assumption is correct, then I find it troubling that Pigg gave evidence inconsistent with the agreed facts
53 Finally, in cross-examination, Pigg was asked to consider a situation in which she was keen to sell a property, had instructed an agent to sell the property and the agent was aware that the acceptance of the sale proposal was required by a particular time. Asked whether she would have been angry if the agent had failed to communicate the offer to an interested party before the time for acceptance passed, Pigg answered that she “couldn’t say”. Pigg did not elaborate on the reasoning underlying the answer. In the circumstances, I find it hard to accept that a keen vendor “couldn’t say” whether the vendor would feel no anger towards an agent who had so obviously failed to perform the role of a reasonably diligent estate agent.
54 I consider that Pigg was truthful when she said that she simply changed her mind about the sale. While at the time of sending the 12.17pm email on 23 August 2013 she was agreeable to the sale, her attitude later changed and she sought to retain the property notwithstanding the upset this might have caused the plaintiffs and the embarrassment and frustration suffered by Tucker and Brown.
Disputed facts
55 The parties identified three facts which were disputed, namely:
(a) did Pigg physically sign the contract document submitted by the plaintiffs?
(b) did Pigg authorise Finning to send the email to the plaintiffs on 23 August 2013 at 1.11pm?
(c) did Pigg not read the email from Tucker to her sent on 23 August 2013 at 12.42pm until shortly before she sent her email to Tucker on 24 August 2013 at 11.15am AEST?
56 The findings I have made in relation to each of these issues are detailed below. In addition, I have made findings in relation to two ancillary issues as raised by the defendant, namely:
(d) what did the parties require to form a binding contract?
(e) was there a valid defence under s126 of the Instruments Act?
(a)Did Pigg sign the contract document?
57 I find that, on the balance of probabilities, Pigg did sign the contract signed by the plaintiffs offering to purchase the property for $549,950 after she received the email from Tucker attaching the document.
58 I make this finding partly because it is the interpretation most compatible with the email which Pigg sent to Tucker on 23 August 2013 at 12.17pm AEST and partly because, having watched Pigg closely while giving her evidence and assessed her credit, I do not believe Pigg’s denial. Pigg agreed that she was quite experienced with computer technology and had worked both as a web consultant and web developer. She had a clear understanding of the difference between printing a document and scanning a document. In her email, she specifically said that she could not scan the contract back to Tucker until the Saturday. I consider that she had no reason to scan the contract back to Tucker unless she had signed it. No other explanation was advanced in any of the evidence.
59 The alleged problem in scanning the document was a reason not to return the document to Tucker until 24 August 2013. It was no impediment to accepting the plaintiffs’ offer, especially when:
· she sent the 12.17pm email to Tucker;
· Finning communicated her acceptance of the offer to the plaintiffs;
· the plaintiffs by their conduct showed that they were agreeable to proceeding with the sale: they accepted Brown’s congratulatory email without demur; they did not seek to avoid the agreement on the grounds that they had not received a signed copy of the contract by Friday evening or, indeed, any other ground; they sought to require settlement of the sale.
60 Moreover, the plaintiffs’ offer was not proscriptive of how the offer was to be accepted. It was sufficient that the contract was agreed and signed off by the vendor by the Friday deadline. The email from Brown to the plaintiffs on 23 August 2013 at 1.11pm constituted clear communication of Pigg’s acceptance of the offer.
61 Although Pigg contended that her proposed acceptance did not match the offer because the document signed by her would not have reached Melbourne until Saturday 24 August, I do not consider that the return of the document was an essential aspect of the agreement. I have considered this issue at greater length below.
62 Having regard to the emails which had passed between Tucker and Pigg and their phone conversation regarding the offers made with respect to the property, I do not attach a literal significance to the expression “I will accept”. This was not an expression of a desire to accept the offer at some unspecified time in the future.
63 The parties, Tucker and Brown, all operated in a context, known to each of them, where:
· the plaintiffs were in Melbourne and making offers to purchase the property;
· Pigg held a power of attorney from her father;
· Pigg lived in London;
· the communications between the plaintiffs, Tucker and Brown were primarily by email but also by telephone;
· the communications between Tucker and Pigg were primarily by email but also by telephone;
· Pigg had delayed and been indecisive in dealing with the plaintiffs’ offers;
· the plaintiffs had specified a time within which they wanted a response to their offer to buy the property at the price nominated by Pigg;
· if Pigg was to sell the property to the plaintiffs when, according to the agent, that was the best offer – not just on price but with respect to ancillary benefits – she had to decide and act by the evening of Friday, 23 August 2013 (Melbourne time).
64 After extensive deliberations on the matter, and having sought more time in August to ponder her response, Pigg finally said she would accept the offer. In context, her email of 12.17 AEST on 23 August was an expression of present intent and not future intent. I find that she resolved to accept immediately the plaintiffs’ offer to purchase the property (despite her evidence to the contrary which I do not accept).
65 Pigg submitted that even if the court finds that she signed the plaintiffs’ offer on 23 August 2013 before 5.30pm AEST and simply failed or refused to scan the document to Finning before the deadline, the plaintiffs’ position would not be materially strengthened. Pigg contended that she had to have sent the signed document to Melbourne. This was said to arise from:
(a) the matters raised in paragraphs 29 and 67 of the defendant’s submissions regarding the need for exchange of signed contracts; and
(b) usual conveyancing practice in Victoria and Australia, as informed by the common law in both places.
66 I have no personal knowledge of usual conveyancing practice, whether in Victoria or elsewhere in Australia. Nor was there any evidence led on the topic. Hence, I remain uninformed on this issue for the purposes of this case.
67 In short, Pigg’s first point seems to amount to an argument that the common intention of the parties was that there be no binding contract until the form of contract was signed by both parties and exchanged. As noted already, I consider that the parties’ conduct reflected an intention that the same form of contract be signed by both the plaintiffs and Pigg. I find that Pigg did print and sign the contract emailed to her by Brown or Tucker.
68 As to the need for an exchange, Pigg pointed to:
· the plaintiffs’ offer being subject to the condition that the form of contract be “agreed and signed off” by the Friday deadline;
· the instructions from Tucker that Pigg sign, scan and send the completed contract document to him;
· the statement by Pigg in the 12.17pm email that she would accept the offer and would send it next day;
· Pigg did not instruct Finning to advise the plaintiffs that she had accepted the offer;
· both the Brown email of 23 August 2013 at 1.11pm and the letter from the plaintiffs’ solicitors on 2 September 2013, reflected the intention that the contracts had to be signed and exchanged before there was a binding agreement.
69 Addressing the points raised, the plaintiffs contended that the words “agreed and signed off” are to be read broadly and are not limited to requiring that the written document be signed and returned. Provided there was some written form of acceptance of the contract, that was sufficient for the purpose.
70 The plaintiffs contended that the relatively detailed instructions regarding the method of signing the emailed contract emanated only from Tucker. Pigg contended that I could infer, given the close contact between Tucker and the plaintiffs, that such an instruction effectively came from the plaintiffs. Though Pigg advanced this argument in general terms, it was not clear to me precisely why or how the contact or communications between the plaintiffs and the representatives of Finning amounted to a joint or mutual instruction to Pigg on the issue.
71 Pigg contended that because Tucker, in his email of 23 August 2013 at 12.42pm AEST, told Pigg to follow the signing instructions, even though Tucker knew at the time that he would not receive the emailed contract from Pigg until the Saturday morning, this reflected an understanding that the sending and receipt of the signed contract was crucial. This was said to be the case notwithstanding that receipt of the document on Saturday was after the expiry of the offer. Pigg argued that this approach was indicative of the parties’ intention that there be a return and exchange of a signed contract within the period specified.
72 I note that:
(a) this argument by Pigg depended upon a view expressed only by Tucker and not by the plaintiffs;
(b) if the offer had to be accepted in the manner which Pigg contended for, then there was no point in Tucker or Brown telling Pigg to send back the signed document on Saturday, 24 August 2013 – it was already too late. To that extent, the use which Pigg sought to make of the Tucker email is questionable. On one view, it is inconsistent with the argument which Pigg advanced regarding the method and timing of the acceptance of the plaintiffs’ offer;
(c) Pigg’s argument is at odds with part of the contract document which both parties, not just one party, accepted as the basis of the dealings between them. The front page of the Contract of Sale says:
“This offer is deemed to have been accepted by the vendor on the date the vendor signs unless the offer has lapsed by that date.”
73 This term is important in providing that, as soon as the vendor signs the document, which has already been signed by the prospective purchasers, then the purchasers’ offer is accepted. Hence, there is a binding contract at that point without the need for any exchange. Especially is it the case when there were no counterpart documents to exchange but only a single document signed by the plaintiffs and sent to London for Pigg to accept the offer by printing off and signing that document. This interpretation is also consistent with the method of communicating offers and responses between the plaintiffs, Finning and Pigg.
74 There is long established authority that, subject to any particular arrangement made between parties, a contract is not made until the acceptance of the offer is communicated. Even with a term of the sort set out in paragraph 72(c), there would be a practical need for the purchasers to know their offer had been accepted even if it were not essential in a theoretical sense to create the agreement. However, even if I am not correct as to this latter point, Finning as the agent for Pigg communicated the vendor’s acceptance of the offer to the purchasers by email on 23 August 2013 at 1.11pm AEST.
(b)Did Pigg authorise Finning to send the email on 23 August 2013 at 1.11pm AEST?
75 With respect to whether Pigg authorised Finning to send to the plaintiffs the email of 1.11pm AEST on 23 August 2013, I find that Finning was so authorised. Pigg said she did not authorise Finning to disclose to the plaintiffs the information in that email. She did not think that the agent would have passed on to the purchasers the substance of her email to Tucker on 23 August 2013 at 12.17pm AEST. However, I consider that even if Finning were not expressly authorised, as the agent for the vendor, it was at least within its implied authority to communicate such information to the prospective purchasers who had made an offer on the terms sought by the vendor and were awaiting a response.
76 If it were the case that Finning acted contrary to specific instructions from the vendor (and there was no evidence to justify this finding), then my view would be that Pigg would still be bound by Finning’s conduct, at least if the plaintiffs were unaware of the absence of authority. However, Pigg might have a claim against Finning.
(c)Did Pigg read Tucker’s email of 23 August 2013 at 12.42pm AEST only shortly before sending her email to him on 24 August at 11.15am AEST?
77 Given that I did not find Pigg to be an altogether reliable and credible witness, I can readily accept that she read the email from Tucker sent on 23 August 2013 at 12.42pm AEST at around the time it was sent. Notwithstanding Pigg’s evidence to the contrary, I consider it is more likely than not that Pigg, having read the email then, knew the agent was soon to contact the plaintiffs to advise them of their successful purchase. She chose to do nothing to prevent this communication because, at the time, she was content for the sale of the property to take place. It was only later that she regretted her decision.
(d)What did the parties require to form a binding contract?
78 As part of her case, Pigg contended that by their letter of 2 September 2013 seeking the contract of sale signed by Pigg, the plaintiffs’ solicitors acknowledged that the return and exchange of such a document was necessary to constitute a binding contract. In my view, getting a copy of the contract signed by Pigg was desirable. It clearly evidenced Pigg’s commitment to the agreement and facilitated the sale transaction. However, an exchange of signed parts was not necessarily required to create a contract.
79 Pigg’s submissions referred to the need for a formal contract signed by both parties to be completed before the parties could be bound in a formal contract regarding the property. Pigg quoted authority in which it was held that, where parties contemplated the need for signatures in order to create a contract, then in the absence of such signature, there could be no contract. I do not doubt that legal principle, especially as it emanates from Neill v Hewens,[2] a judgment of the High Court. However, in this case, notwithstanding Pigg’s evidence that she did not sign the document constituting the plaintiffs’ offer to purchase the property for $549,950, I have found that she did sign the document. Put simply, I do not believe Pigg’s evidence.
[2](1953) 89 CLR 1
80 Pigg also referred to Giasoumi v Hutton.[3] There, the defendant was the vendor of a property which was placed with a real estate agent for sale. The property was owned by the wife. Her husband was a solicitor. The purchaser signed the original of a standard form sale note and handed to the agent a cheque for the deposit. The agent delivered the original sale note to the husband of the vendor, the husband arranged for his wife to sign the sale note. The husband told the agent that the sale note had been signed. The agent informed the purchaser of the signing, but also made clear that he did not have the signed note in his possession. Later, the vendor’s husband told the purchaser that if his wife received a permit to erect an office building on the land, the contract would not proceed. The council later gave conditional approval and when the defendant did not proceed with the sale, the purchaser sued for specific performance or alternatively rescission and damages.
[3]Unreported, Supreme Court of Victoria, Lush J, 6 April 1977
81 At first instance, Lush J found that both the agent and the purchaser proceeded on the basis and with the intention that there would be no contract until the vendor signed the sale note. The critical issue in the case was whether the signature of the sale note by the vendor wife was effective to bind her. The trial judge applied the principle that a signature applied to a document is not effective until such time as the signatory intends it to be effective. He held that the action which would have manifested the vendor’s intention to be bound was the return to the agent of the signed sale note. Accordingly, he dismissed the plaintiff’s claim. On appeal to the Full Court, the decision was upheld.[4]
[4]Giasoumi v Hutton (Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Gillard and Anderson JJ, 29 November 1977)
82 Counsel for the appellant advanced two submissions in support of his argument. First, he submitted that there was a contract between the plaintiff and the defendant constituted by the sale note, and that the contract was complete upon the notification to the plaintiff by the agent that the sale note had been signed. Second and alternatively, a contract constituted by the sale note came into existence at the moment it was signed by the plaintiff and became enforceable when it was signed by the defendant.
83 The Full Court said that in order to establish the first argument, the purchaser required a finding that the parties contemplated that acceptance of the purchaser’s offer would be communicated orally through the agent or at least evidence upon which such a finding could be made. It was held that there was no evidence to support such a finding, and the trial judge was correct not to have made any such finding. The Court noted that it was implicit in Lush J’s findings that he accepted the evidence of the vendor that she had not, when she signed the sale note, formed an intention to sell the land to the purchaser.
84 As to the second submission, the Full Court said that the relevant facts were not made out because it was clear, as the trial judge found, that the purchaser and agent had each proceeded on the basis that there was to be no contract until both parties had signed the sale note. In addition, the terms of the sale note militated against acceptance of the argument.
85 Again, I do not dispute this authority. However, it is distinguishable on its facts. As already observed, the Full Court said it was implicit in the trial judgment that the judge accepted the defendant’s evidence that when she signed the sale note, she had not formed an intention to sell the land to the plaintiff. Here, by way of distinction, I have found that Pigg did intend to be bound immediately upon signing the contract document emailed to her.
86 I consider the parties in this case contemplated that a contract would be made when either Pigg signed the copy contract attached to the email from Tucker (see the clause of the Contract of Sale set out in paragraph 72 above) or when the agent advised that Pigg had signed the document already signed by the purchasers.
87 Pigg contended that she never accepted the plaintiffs’ offer because her email to Tucker used precatory language which was not an unqualified acceptance. She referred to the judgments of Smith J in Ballas v Theophilos(No 2)[5] and the subsequent appeal in the High Court in Ballas v Theophilos (No 2).[6] In context, Pigg’s email was an unqualified acceptance of the plaintiffs’ offer. The 12.17pm AEST email by Pigg evidenced a recognition that due to the problem in scanning the signed contract, she would not be able to send the signed contract to Melbourne by 5.00pm or 5.30pm AEST on 23 August 2013. However, in my opinion, the response showed an intention to accept the plaintiffs’ offer immediately while simultaneously advising that, assuming (wrongly in my view) the document signed by Pigg had to be received in Melbourne on 23 August 2013, she would not make that deadline. I do not consider that the parties intended that the signed document be received in Melbourne by the close of business on 23 August 2013, failing which there was no agreement. The contemporaneous evidence in the documents passing between the parties and their representatives gives an insight into the factual context at the time, as opposed to evidence given subsequently at trial.
[5][1958] VR 576
[6](1957) 98 CLR 193
(e)The Instruments Act defence
88 Pigg submitted that she had a complete defence under s126 of the Instruments Act. She argued that the plaintiffs had to show that there was:
(a) an agreement or contract; or
(b) a sufficient note or memorandum of such agreement
signed by the vendor or by a person lawfully authorised in writing to do so. She submitted that neither alternative was satisfied in this case. Pigg said that there was no evidence that she signed the contract. I disagree, and consider there is strong evidence she did. The fact that there was no document signed by Pigg produced at trial does not mean that no such document existed.
89 It is not an invariable requirement of the law that there can be a binding contract for the sale of land only if there is an exchange of contracts. A physical exchange is not essential. In Rymark Australia Development Consultants Pty Ltd v Draper,[7] the Supreme Court of Queensland rejected a submission that the parties intended to be bound only when duly executed parts of the contract were exchanged.[8]
[7][1977] Qd R 336
[8]See also Fitzwood Pty Ltd v Unique GoalPty Ltd [2000] FCA 36
90 While I am satisfied Pigg signed the contract sent by Tucker, the plaintiffs have an alternate argument regarding the satisfaction of s126 of the Instruments Act.
91 The plaintiffs contended that because the critical email of 12.17pm AEST on 23 August 2013 had Pigg’s name at the top of the email and she signed “Jessica” on the lower part of the email, that was a sufficient signature for the purposes of s 126. The electronic signature on the lower part of the page was said to be permissible and effective in accordance with the provisions of the Electronic Transactions (Victoria) Act 2000.
92 In relation to the Instruments Act, the concept of signature has been interpreted broadly. If the name of the party to be charged is printed or written on a document intended to be a memorandum of the contract, either by the person or the person’s authorised agent, it is his signature, whether it is at the beginning, middle or foot of the document.[9] The important point is that wherever located, the signature must be intended to authenticate the whole document or documents constituting the record of the contract. The High Court in Harvey v Edwards Dunlop & Co Ltd[10] observed that the memorandum did not have to be contained in a single document but could be made out from several documents connected together. Hence, a party seeking to prove the sufficient note or memorandum has to prove:
[9]Durrell v Evans (1862) 158 ER 848, at 855
[10](1927) 39 CLR 306
(a) the existence of a document;
(b) a sufficient reference, express or implied, in that document to either:
(i) another document or documents; or
(i) another transaction that was reduced into writing; and
(c) a sufficiently complete memorandum when the documents are read together with the defendant’s signature on at least one document.
93 In this case, the chain of correspondence passing between both the plaintiffs and Finning on the one hand, and Tucker and Pigg on the other, give the context of the dealings between the parties. The Tucker emails sent to Pigg on 22 August 2013 at 5.45pm and 9.30pm AEST, together with Pigg’s response on 23 August 2014 at 12.17pm AEST, in my view constitute a sufficient note or memorandum for the purposes of the Instruments Act. Having regard to cases like Stuart v Hishon,[11] I consider that Pigg typing her name “Jessica” on the latest of those emails constituted a signature under the provisions of the Electronic Transactions (Victoria) Act. By Pigg typing her name at the foot of the email to Tucker, Pigg signed the documents in accordance with the provisions of the legislation. To take another view, would be “an almost lethal assault on common sense”.[12]
[11][2013] NSWSC 766
[12]Ibid at [34]
94 The defendant argued that whether s9(1)(a) of the Electronic Transactions (Victoria) Act was satisfied in a particular case was a question of fact considering “evidence of the general context and surrounding circumstances in which the email was sent and direct testimony from the parties to the communication as to the meaning that it was intended to convey”.[13] Here Pigg submitted that she did not sufficiently reveal her intention in respect of the information communicated for the purposes of s9(1)(a). The signature did not indicate an intention that the contract be treated as signed, and that she unequivocally accepted the offer. Also, the use of her first name alone compared to her full name appearing in the power of attorney suggested that this was not a signature validating the contract.
[13]Russells v McCardel & Ors [2014] VSC 287, at [66]
95 Even assuming the test proposed by Pigg is correct, namely to take account of Pigg’s subjective intention regarding the affixation of her name to the email responding to Tucker, I do not accept the thrust of Pigg’s evidence. Accordingly, I consider Pigg has not raised any basis to upset the view that the requirements of s9(1) were met.
Conclusion
96 I invite the parties to agree on a final form of order which reflects these reasons. If orders cannot be agreed, I shall hear the parties regarding appropriate orders.
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