Snapper Holdings Pty Ltd v Lentini

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2018 00979

SNAPPER HOLDINGS PTY LTD (ACN 155 068 367) and Anor (according to the Schedule attached)	Plaintiffs
v
VITA (VICKI) LENTINI (in her own right and as Executor of the Will and Estate of the late Lina Bertuna)	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 October 2018
DATE OF JUDGMENT:	20 December 2018
CASE MAY BE CITED AS:	Snapper Holdings Pty Ltd v Lentini
MEDIUM NEUTRAL CITATION:	[2018] VSC 800

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CONTRACT – Terms of settlement agreed at mediation – Construction and interpretation – Whether parties had reached finality in arranging all the terms of their bargain and intended to be immediately bound to performance of those terms or had not and agreed to be bound only when formal terms executed – Objective intention of the parties – Masters v Cameron (1954) 91 CLR 353; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Nurisvan Investments Limited v Anyoption Holdings Limited [2017] VSCA 141.

PROPERTY LAW – Whether terms of settlement entered into at mediation a contract for the sale of land under the Sale of Land Act 1962 (Vic) – Whether parties intended to be immediately bound where no vendor’s statements given as required by Sale of Land Act 1962 (Vic) s 32 – Whether terms of settlement void or unenforceable by reason of non-compliance with Sale of Land Act 1962 (Vic)– Al Azhari v 27 Scott Street Pty Ltd [2017] VSC 600 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M Clarke QC with Ms C Jones	Patten Robins Lawyers
For the Defendant	Mr J Evans QC with Mr A Silver	Madgwicks

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background facts................................................................................................................................ 2

Events after the execution of the Terms......................................................................................... 8

Procedural history............................................................................................................................ 17

Plaintiff’s claims............................................................................................................................... 19

Defendant’s claims........................................................................................................................... 21

Submissions and Consideration................................................................................................... 21

Are the Terms final and binding?............................................................................................. 21
Section 32 of the Sale of Land Act............................................................................................. 29
Terms not signed on behalf of deceased estate...................................................................... 35
Are the Terms void for uncertainty?........................................................................................ 38
No provision for transfers to Vicki as executor of the estate of the deceased......... 38
GST provisions................................................................................................................... 39
Other matters making the Terms uncertain................................................................... 40

Specific performance.................................................................................................................. 41

Conclusions....................................................................................................................................... 44

HIS HONOUR:

Introduction

The disputes in this proceeding primarily concern the enforceability of terms of settlement (Terms) entered into at the mediation of a proceeding in the Victorian Civil and Administrative Tribunal (VCAT). The plaintiffs claim a declaration that the Terms are void or unenforceable and for consequential relief.[1] The defendant resists the declaration sought and claims that the Terms are binding and enforceable and seeks, by counterclaim, specific performance or damages in lieu of specific performance, and other relief.[2]
[1]By the Amended Statement of Claim filed 12 April 2018, the plaintiff’s consequential relief are orders for sale of the Brunswick property (227 Melville Road, Brunswick, Victoria) and the Rosebud property (2 Lutana Street, Rosebud West, Victoria) pursuant to s 225 of the Property Law Act 1958 (Vic) (PLA), for payment of the proceeds of sale of those properties and related relief.
[2]The other relief includes damages for breach of the Terms and, in the alternative, if the Terms are declared void or unenforceable, the defendant seeks an order for compensation or an accounting in respect of the plaintiff’s use of the Brunswick property pursuant to s 233 of the PLA.

The evidence at the trial was ordered to be by affidavit.[3] The plaintiffs tendered and relied on the affidavits of Angelo Anthony Bertuna, the second plaintiff (Angelo),[4] Angelo Biviano (Biviano)[5] and Anthony Norman Murdoch (Murdoch) of Patten Robins Lawyers,[6] and the exhibits to those affidavits. The defendant tendered and relied on the affidavits of Sarwar (Sazz) Nasimi (Nasimi) of Madgwicks Lawyers[7] and the defendant Vita Lentini (Vicki)[8] and the exhibits to those affidavits.
[3]Order made on 4 June 2018. In addition, by order of Justice Dixon made on 6 April 2018, the hearing and determination of the proceeding was referred to me pursuant to r 77.05 of the Supreme Court (General Civil Procedure ) Rules 2015 (Vic).
[4]Affidavit made on 7 September 2018 (Bertuna affidavit).
[5]Affidavit made on 7 September 2018 (Biviano affidavit).
[6]Affidavit made on 7 September 2018 (Murdoch affidavit).
[7]Affidavit made on 29 March 2018 (first Nasimi affidavit), 6 April 2018 (second Nasimi affidavit) and 25 September 2018 (third Nasimi affidavit).
[8]Affidavit made on 28 August 2018 (Lentini affidavit).

Angelo is Vicki’s brother. They are the children of Lina Bertuna (the deceased). She died on 1 April 2017. Probate of her will was granted to Vicki on 17 July 2017. Under her last will, the deceased left the whole of her estate on a trust for sale and to hold the proceeds on a separate discretionary trust called the Lina Bertuna Trust for her two children, their descendants and related entities.

Biviano is an accountant and was the sole director of the first plaintiff (Snapper) from 10 January 2012 until 17 April 2018 when Angelo was appointed as a director. Biviano resigned as a director on 27 April 2018. Angelo was the sole director from that date until 22 August 2018 when his domestic partner, Stavroula Alebakis, became the sole director.[9] Snapper is the trustee of the Snapper Holdings Trust, and is registered for Goods and Services Tax (GST).
[9]Exhibit AAB-1 to the Bertuna affidavit.

It seems that the explanation for Biviano being the director of Snapper at most relevant times up to April 2018 is that Angelo was made bankrupt 4 June 2014 as a result of a debtor’s petition presented by the Deputy Commissioner of Taxation.[10] There were multiple objections to his discharge, including a failure by the bankrupt to disclose his beneficial interest in property. Angelo’s bankruptcy was ultimately annulled under s 74 of the Bankruptcy Act 1966 (Cth) when the debts giving rise to it were paid or settled.
[10]Trial Exhibit D1, National Personal Insolvency Index Extract for Angelo Bertuna born on 5/1/1976 extracted on 8/10/2018 and Transcript of Proceedings, Snapper Holdings Pty Ltd v Lentini (Supreme Court of Victoria, S CI 2018 00979, Associate Justice Derham, 8 October 2018) 75.16.

Both Angelo and Nasimi were cross-examined on their affidavits. Nothing relevant to the determination of whether the Terms were a final and binding agreement, or as to their validity and enforceability, ultimately emerged from the cross-examinations.

Background facts

A part of the estate of the deceased are interests in two properties jointly owned with Snapper and Vicki. The first property is 277 Melville Road, Brunswick West, Victoria (Brunswick property)[11] and it was and is held in the following shares:
[11]The land more particularly described in Certificate of Title Volume 8388 Folio 761.

(a) the deceased as to two of four equal undivided shares;

(b) Vicki as to one of four equal undivided shares; and

(c) Snapper as to one of four equal undivided shares.

The second property is 2 Lutana Street, Rosebud West, Victoria (Rosebud property)[12] and it is and was held in the following shares:
[12]The land more particularly described in Certificate of Title Volume 8863 Folio 728.

(a) the deceased as to 34 of 100 equal undivided shares;

(b) Vicki as to 33 of 100 equal undivided shares; and

(c) Snapper as to 33 of 100 equal undivided shares.

The estate of the deceased also included a residential property in Glenroy which was sold by Vicki as executor of the estate.

It is common ground that the Brunswick property is a two-storey building divided into a shop downstairs and residential premises upstairs, and that at all times since 7 March 2014, Snapper (or Angelo as its agent) has been occupation of or receipt of income from the leasing or granting of rights of occupation in respect to the property to the exclusion of the deceased and Vicki (in both her capacities).[13] The interest in the Brunswick property owned by Snapper was formally owned by Angelo (and subject to a mortgage to the National Australia Bank Ltd (NAB) for which Angelo was solely responsible) and before he transferred it to Snapper[14] he undertook renovations. After transfer to Snapper NAB was again registered mortgagee.
[13]Defence to Amended Statement of Claim and Amended Counterclaim filed 18 April 2018, [27]; Defence to Amended Counterclaim filed 27 April 2018,[33].
[14]Purportedly pursuant to a Contract of Sale dated 1 July 2012 (but attaching a section 32 statement that includes third party material that dates from 4 December 2012), a transfer of land dated 1 May 2013 and stamped for duty on 18 February 2014, and registered on 7 March 2014.

A dispute arose as to the distribution of the deceased’s assets which led to Vicki commencing a VCAT proceeding against Snapper (VCAT proceeding).[15] In substance, the VCAT proceeding was an application for the sale of the two properties and a division of the proceeds between the co‑owners, including the estate of the deceased. The VCAT proceeding was brought by Vicki in her two capacities, as executor of the deceased’s estate and personally, as a co‑owner of each of the properties.[16]
[15]Proceeding No BP 1101/2017.
[16]Applicants application of orders and points of claim in the VCAT proceeding, Exhibit AAB-11 to the Bertuna affidavit.

A mediation of the VCAT proceeding took place on 11 December 2017. Murdoch and Biviano attended the mediation representing Snapper, although Biviano left before the conclusion and signing of the Terms. Vicki attended and was represented by Mr Jonathon Evans QC, instructed by Mr Nasimi of Madgwicks Lawyers (Nasimi). The Terms were drafted by Mr Evans QC and then considered and amended after discussion between Mr Nasimi and Mr Evans on the one hand, and Murdoch on the other. The Terms were finalised and signed by Vicki and, on behalf of Snapper and Angelo by Murdoch. Murdoch was authorised to execute the Terms.[17]
[17]Murdoch affidavit, [8].

The Terms included recitals which were expressly agreed to form a part of the agreement. Those recitals provided, in substance:

(a) Vicki is the executor of the will and estate of the deceased (recital A);

(b) that the deceased, Vicki and Snapper are the co‑owners of the Brunswick property and the Rosebud property, setting out their respective shares (as referred to above) (recitals B and E);

(c) that Snapper became the registered proprietor of its interest in the Brunswick property on 7 March 2014 as the transferee of the interest previously held by Angelo (recital C);

(d) the NAB is the registered proprietor of an interest as mortgagee in the Brunswick property registered on 7 March 2014 (Brunswick mortgage), and that mortgage had replaced earlier mortgages. All monies secured by the mortgage were provided to Angelo or Snapper and not for the use or benefit of the deceased or Vicki (recital D);

(e) that Vicki commenced the VCAT proceeding seeking orders under s 225 of the PLA for the sale of the Brunswick property and the Rosebud property, as well as an accounting under s 233 of the PLA (recital F);

(f) the parties, that is Vicki, Snapper and Angelo, have agreed to resolve the VCAT proceeding, as well as other issues relating to the estate of the deceased, on the terms set out in the Terms (recital G).

The definitions and operative provisions of the Terms are as follows:

(a) ‘Brunswick Consideration’ means the amount of $1,100,000 (exclusive of GST) (cl 2(1));

(b) ‘Brunswick Payment Date’ means 9 March 2018, or such earlier date as is agreed in writing between all of the parties (cl 2(2));

(c) ‘Corpus’ means the corpus of the Lina Bertuna Trust required to be established under cl 4 of the will of the deceased, and for the avoidance of doubt is taken by all the parties to mean the net assets of the estate of the deceased after payment of all costs and expenses (including funeral expenses, testamentary expenses, legal costs, taxation liabilities and any other costs and expenses properly incurred by Vicki as the executor of the estate of the deceased (cl 2(3));

(d) ‘Rosebud Consideration’ means the amount of $485,000.00 (cl 2(4));

(e) from the date of the Terms, Snapper and Angelo agree not to seek to exercise any rights of occupation, or permit any person as its or his agent or licensee to exercise any rights of occupation, in respect of the Rosebud property (cl 3);

(f) Vicki (both in her own right and as executor of the estate of the deceased) agrees that from the date of the Terms, Snapper shall be entitled to receive all income, and Snapper agrees from the date of the Terms it should be responsible for all expenses, in respect of the Brunswick property (cl 4);

(g) Vicki (in her own right) and Snapper each agree to transfer their respective interests in the Rosebud property to Vicki for an amount representing 34% and 33% respectively of the Rosebud Consideration, payable by Vicki on the Brunswick Payment Date (cl 5);

(h) Vicki (in her own right) and Vicki (as executor of the deceased estate) each agree to transfer their respective interests in the Brunswick property to Snapper for an amount representing 25% and 50% respectively of the Brunswick Consideration, payable by Snapper on the Brunswick Payment Date (cl 6);

(i) Snapper agrees to pay Vicki (in her own right) and Vicki (as executor of the deceased estate) the amounts of $10,000 and $20,000 respectively (together called the ‘Accounting Payment’) on the Brunswick Payment Date, in satisfaction of the claims by Vicki for an accounting in respect of the Brunswick property (cl 7);

(j) Vicki shall not be required to provide any transfers of land in respect of the Brunswick property to Snapper without Snapper tendering payment of the Brunswick Consideration (adjusted for the set-off referred to in cl 12 of the Terms) and the Accounting Payment (cl 8);

(k) Snapper acknowledges that it is solely responsible for the satisfaction of the liabilities of Snapper and Vicki (both in her own right and as executor of the deceased estate) which are secured by the Brunswick mortgage, and to indemnify Vicki (in both her capacities) in respect of any amounts required to be paid by them to NAB in respect of any such liabilities. Snapper agrees that not less than seven days before the date on which Vicki is required to deliver transfers of land to Snapper in respect of the interests of Vicki (in both capacities), Snapper will provide to Vicki’s solicitors, Madgwicks, confirmation from NAB that NAB will release Vicki and the deceased estate from all claims against them in respect of the Brunswick mortgage, upon completion of the transfer by Vicki to Snapper of her and the deceased estate’s interests in the Brunswick property (cl 9);

(l) Vicki as the executor of the deceased’s estate agrees that upon the receipt by her of all amounts required to be paid to the estate under the Terms, and conditional upon that receipt, Angelo shall have a power to nominate in writing a person or persons each of whom shall be an eligible beneficiary for the purposes of cl 4 of the will of the deceased and upon receipt of that nomination:

(i) Vicki will determine to distribute to the nominee or nominees an amount equal to one-half of the corpus, less the amount of $50,000;

(ii) Vicki will create an express trust in favour of Siam Lilian Bertuna (Siam) and settle upon that trust the amount of $50,000, to be invested at the discretion of Vicki, and to be distributed as follows:

(A) 50 per cent of the corpus to Siam on her attaining 21 years of age;

(B) the balance to Siam on her attaining 30 years of age;

(C) in the event of Siam’s death prior to her attaining 30 years of age, the corpus of the trust in favour of Siam shall be paid to Angelo (cl 10).

(m)the distribution under cl 10(1) [para (l)(i) above] shall take place 30 days after the receipt by Vicki of the nomination referred to in cl 10;

(n) that part of the Rosebud Consideration (defined to mean the amount of $485,000) which is payable by Vicki to Snapper shall not be required in fact to be paid by Vicki, but instead shall be set-off against her entitlement to receive from Snapper her share of the Brunswick Consideration, with the balance after set‑off to be paid by Snapper to Vicki on the Brunswick Payment Date (cl 12);

(o) the parties agree to execute all documents and do all things necessary or reasonably required in order to complete the transactions which are the subject of the Terms (cl 13);

(p) the parties to the proceeding consent to the making of orders that the proceeding be dismissed, with no order as to the costs of the proceeding (cl 14);

(q) subject to the rights and obligations created by the Terms, the parties agree to release each other from all claims relating to the proceeding, the Brunswick property, the Rosebud property, the estate of the deceased and its administration by Vicki (cl 15);

(r) Angelo undertakes not to make any claim against the estate of the deceased pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (cl 16).

Events after the execution of the Terms

In early 2018, Nasimi instructed a junior lawyer in Madgwicks’ property division, Rebecca Giacomin (Rebecca), to prepare the necessary documents and make arrangements to enable the transfers of land with respect to the interests in the Brunswick property and the Rosebud property to take place on 9 March 2018.

By consent order made by senior member Riegler of VCAT on 2 January 2018, the VCAT proceeding was dismissed without an adjudication on the merits and with no order as to costs.[18]
[18]Exhibit VL–8 to the Lentini Affidavit.

By email on Monday 19 February 2018, Rebecca introduced herself to Murdoch as the person acting in the transfers and subsequent settlement of the Brunswick and Rosebud properties pursuant to the Terms. She noted:

(a) that the Brunswick property will be transferred to Snapper in accordance with the terms and she awaits a transfer of land and duties online invitation from Murdoch for Vicki to sign;

(b) that the consent of the mortgagee over the Brunswick property was required together with confirmation that Vicki personally, and as executor, will be released in respect of all claims under the NAB mortgage upon completion of the transfer. She stated that she awaits Murdoch’s confirmation that he has attended to seeking the mortgagee’s consent in that regard;

(c) in relation to the Rosebud property to be transferred to Vicki in accordance with the Terms, that she will prepare a transfer of land, duties forms and statement of adjustments and provide them to Murdoch as soon as possible;

(d) that as the transfers are stand-alone transfers and will take place after 1 March 2018, the settlement must take place via PEXA and seeks confirmation from Murdoch that he will send a PEXA invitation and asks in the alternative whether Murdoch would like Madgwicks to create the PEXA workspace.[19]

[19]Exhibit ANM–4 to the Murdoch affidavit.

On 20 February 2018, Murdoch replied by email to Rebecca, with copies to Nasimi (amongst others) thanking her for her email of the previous day and stating:

I believe our client’s accountant may have made contact with respect to the possibility of the final distribution of the estate also occurring on 9 March 2018. This would mean that both our clients would not need to contribute to their respective purchases financially and we would be grateful to know if [your] client (in both her capacities) would indicate her position in relation to this occurring.

Murdoch otherwise noted the various requests made by Rebecca in relation to the properties and said that his firm will attend to them promptly. He confirms that his client has been in touch with NAB and the appropriate discharge and all releases will also be provided promptly.[20]

[20]Exhibit ANM–5 to the Murdoch affidavit.

On 21 February 2018, one Jessica Garcia of Patten Robins, the solicitors acting on behalf of the plaintiffs, emailed Murdoch (internally) reporting that Rebecca from Madgwicks had called saying that she would like have to a general discussion with Murdoch in relation to the settlement, that initially she had suggested that settlement would occur via PEXA but she no longer thinks that is possible because the deceased is still the registered proprietor on both sides, that an application by the legal personal representative would need to be made and lodged and otherwise she confirmed that the final distribution [of the estate] on 9 March 2018 ‘would be fine’.[21]
[21]Exhibit ANM–6 to the Murdoch affidavit.

On 22 February 2018 Murdoch responded to Rebecca saying that he had tried to call without success and asked for a copy of the grant of probate because NAB had asked for it in relation to the release of the mortgage over the Brunswick property. Rebecca responded the same day attaching a copy of the grant of probate.[22]
[22]Exhibits ANM–7 and ANM–8 to the Murdoch affidavit.

On 26 February 2018:

(a) Murdoch emailed Rebecca saying that he understood that one Kerri Yin of his office had been in touch with Rebecca regarding the transfer documents and the logistics surrounding settlement. He notified that pursuant to Clause 10 of the Terms, Angelo nominates Snapper to benefit under the will of the deceased. He asks that Madgwicks forward draft figures for the distribution of the estate as though it would occur on or before 9 March 2018 and asked:

We would be grateful for your indication in writing that this can definitely occur on 9 March 2018, so our respective clients do not have to provide their own funds in settling the properties on that day also. If this cannot occur and the parties need to revert to the 30 day timeframe under [the Terms] for distribution of the estate, our client will need immediate notice to source funding for these settlements. We appreciate your urgent response on this matter so all things can proceed smoothly. Our clients indicate that they are grateful for your client’s cooperation in advance.[23]

(b) Rebecca responded saying that she was seeking instructions from Nasimi who is handling the distribution of the estate and would revert back to him as soon as possible.[24]

[23]Exhibit ANM–8 to the Murdoch affidavit.

[24]Exhibit ANM–9 to the Murdoch affidavit.

On 27 February 2018:

(a) Murdoch emailed Rebecca saying:

Sorry to continue to persist on this question, but as you can no doubt appreciate my client is now faced with a settlement on a property in less than 8 business days.
While you have very helpfully indicated by telephone that distribution can occur on 9 March 2018, our client has no formal written confirmation of same, and may be left needing to find a $750,000 plus loan within 8 days. Should our client not be able to settle on 9 March 2018, it would be in breach of the Terms in this matter.
It would be very unlikely that such a loan could be achieved in such a tight timeframe, and we therefore respectfully insist that you now confirm in writing that the distribution of the estate will occur on or before 9 March 2018 AND that our client will not need to contribute funds to that settlement by way of a net position.[25]

(b) Rebecca responded saying that she needed to clarify whether a distribution will be possible with Nasimi as he has been handling the estate matter and needs to give instructions as to whether this will be possible. She stated that she will speak to him the first thing the next day and endeavour to get back to him as soon as she can.[26]

[25]Exhibit ANM–10 to the Murdoch affidavit.

[26]Exhibit ANM–11 to the Murdoch affidavit.

Rebecca did respond to Murdoch on Wednesday 28 February 2018 saying:

Can you please advise the status of the mortgage with NAB over 227 Melville Road, Brunswick Road 3055? This will have a bearing on whether money can be distributed to your client prior to settlement. We need to ensure that our client in own capacity and in her capacity as Executor are released from the mortgage, before agreeing to distribute any funds.
Please advise.
I also attach a copy of the Transfer of land in preparation for settlement on 9 March.[27]

[27]Exhibit ANM–12 to the Murdoch affidavit.

On Thursday 1 March 2018:

(a) Murdoch emailed Rebecca (copying Nasimi, Biviano and others) thanking her for forwarding the Transfer of Land and stating:

I can confirm that the mortgage remains on the property and in accordance with clause 9 of the Terms of Settlement, we will provide you with confirmation no later than tomorrow that NAB will release Vicki and the estate of Lina Bertuna from all claims against them in respect of the Brunswick mortgage, upon the completion of the transfer.
To assist NAB in this regard, the NAB have asked us for an application for survivorship – surely they meant to ask for a copy of the application as personal representative. If you could kindly provide this as a matter of urgency this would be appreciated. I apologise for the piecemeal requests, but that’s NAB for you![28]
[28]Exhibit ANM–13 to the Murdoch affidavit.

(b) Rebecca responded to Murdoch (with copy to Nasimi, Biviano and others) enclosing a copy of the application by personal representative in relation to the Brunswick property and asking ‘whether any payments will be due to NAB to reduce the loan at all, or is your client taking over the whole loan?’[29]
[29]Exhibit ANM–14 to the Murdoch affidavit.

(c) Kerri Yin of Patten Robins forwarded by email to Rebecca the Transfer of Land for the Brunswick property signed by Murdoch on behalf of Snapper;[30]
[30]Exhibit ANM–15 to the Murdoch affidavit. It should be noted, that it is the usual conveyancing practice in Victoria for the purchaser to be responsible for the preparation of the Transfer of Land and to sign it and provide it to the vendor prior to settlement so that the vendor can hand over, at settlement, the transfer of land signed by the vendor and purchaser. In this case the transfer of land identified both Snapper and Vicki and transferors and Snapper alone as transferee.

(d) By email from Rebecca to Murdoch, she attached the application by personal representative in relation to the Brunswick property noting that the previous one sent (see above) related to the Rosebud property;[31]

(e) Murdoch emailed Rebecca apologising for the flood of emails and advising that the NAB loan will not require any payment to it. It will simply be lifted off and then replaced. If anything, he said, it may be increased but that should not affect the conveyance from your side at all;[32]

(f) Rebecca emailed Murdoch asking for the estimated figure Snapper required to settle the Brunswick property and noted that Snapper owes more for the purchase of the Brunswick property than Vicki owes for the purchase of the Rosebud property and suggests setting them off;[33]

[31]Exhibit VL–9 to the Lentini affidavit.

[32]Exhibit ANM–16 to the Murdoch affidavit.

[33]Exhibit ANM–17 to the Murdoch affidavit.

On 2 March 2018, Murdoch responded to Rebecca that his client estimates that when the estate settles on the same day as the properties, Snapper will receive funds and not require additional funding – as a net position. He went on that in relation to the proposed set-off, he agreed and noted that ‘our client has agree to same by way of the Terms of Settlement’.[34]
[34]Exhibit ANM–18 to the Murdoch affidavit.

On Monday, 5 March 2018:

(a) Murdoch sent to Rebecca a copy of an authority given by Biviano, as director of Snapper, authorising Murdoch to act on its behalf and deal with all matters including dealings in land and consenting to Murdoch signing in relation to all matters. The authority is dated 8 December 2017 and is, curiously, directed to VCAT;[35]
[35]Exhibit ANM–19 to the Murdoch affidavit.

(b) after receiving the authority from Murdoch, Rebecca forwarded it to Matisi Legal who held the duplicate Certificate of Title to the Rosebud property, for the purposes of allowing the release of the Title to Vicki;[36]
[36]Exhibit ANM–20 to the Murdoch affidavit.

(c) Rebecca emailed Kerri Yin of Patten Robins (copied to Murdoch and others), referring to a telephone call earlier that day and asking whether settlement can proceed on Friday (9 March) once it has been booked in with NAB. She attached a copy of the Transfer of Land for the Rosebud property and asked for an amended Transfer of Land and duties form for the Brunswick property for signing by Vicki. She also said that she awaited confirmation that the NAB loan has been discharged or consent has been obtained in that regard;[37]
[37]Exhibit ANM–21 to the Murdoch affidavit.

(d) Murdoch emailed the responsible person at NAB saying that he urgently required written confirmation that the deceased and Vicki will be released from the mortgage over the Brunswick property upon transfer of the property to Snapper, noting that as it currently stands, this has not been received and ‘our clients are in breach of their terms of settlement filed with VCAT last year’. He asked for confirmation that NAB will be able to provide this by 4 pm that day. The NAB officer responded asking for a certified copy of the Grant of Probate and will, the original application by personal representative, the original Transfer of Land and a duty statement;[38]
[38]Exhibit ANM–22 to the Murdoch affidavit.

(e) NAB responded again attaching a customer notification form to be signed by Vicki.[39] The notification form was entitled ‘Deceased Customer Notification’ and is a notification of the death of Lina Bertuna;

(f) Kerri Yin of Patten Robins emailed Rebecca attaching the amended transfer of land for the Brunswick property and advising that the caveat over the Rosebud property [lodged on behalf of the plaintiffs] had been withdrawn that day in PEXA;[40]

(g) Murdoch emailed Rebecca attaching the NAB Deceased Customer Notification for signing by Vicki as a matter of urgency.[41] Rebecca responded that it would be signed the next day and a scanned copy provided to Murdoch.[42]

[39]Exhibit ANM–23 to the Murdoch affidavit.

[40]Exhibit ANM–24 to the Murdoch affidavit.

[41]Exhibit ANM–25 to the Murdoch affidavit.

[42]Exhibit ANM–26 to the Murdoch affidavit.

On 6 March 2018, Rebecca emailed Murdoch asking his assistance in getting an authority to release the certificate of title to the Rosebud property as required by Robert Matisi. Matisi would not accept the authority provided by Biviano (referred to above). She noted that her client, Vicki, intended to collect the title to the Rosebud property that morning. The reason that the authority was not satisfactory was it appeared to be for the purposes of the VCAT matter rather than an authority from Snapper as co-owner of the Rosebud property for Matisi to hand the duplicate Certificate of Title to Vicki as executor of the will of her mother.[43] This produced a response by email that day from Biviano to Rebecca and Murdoch attaching an authority for Matisi Legal to release the title to Madgwicks.[44] This authority was then forwarded by Rebecca to Robert Matisi.[45]
[43]Exhibit ANM–27 to the Murdoch affidavit.
[44]Exhibit ANM–28 to the Murdoch affidavit.
[45]Exhibit ANM–29 to the Murdoch affidavit.

On 7 March 2018:

(a) Murdoch proposed to NAB the wording for the undertaking to be provided at settlement pursuant to cl 9 of the Terms.[46] The NAB officer responded that she would provide it on NAB letterhead shortly;[47]
[46]Exhibit ANM–32 to the Murdoch affidavit.
[47]Exhibit ANM–33 to the Murdoch affidavit.

(b) Rebecca sent to Murdoch a preliminary settlement statement in preparation for settlement on Friday, 9 March 2018. It was stated to be provided in order to highlight the flow of monies and was not an admission in any way of the final reconciliation between the parties with respect to the estate. She noted the actual current balance of the estate to be approximately $820,000 but that she needs to ensure that there are sufficient funds in the estate to cover all fees that the estate may incur, including legal fees, accounting fees and tax obligations. Under the Terms, she noted, their respective clients were each entitled to 50% of the net estate but that at this stage it is difficult to estimate how much, exactly, the net estate will be. She had therefore advised Vicki to leave $100,000 of her portion in the estate to account for the payment of these fees and insisted that Angelo leave a similar amount in the estate for the same reason. According to her calculations, Snapper owed a total of $327,500 to Vicki in order to settle the Brunswick purchase and the Rosebud sale (including the payment of $30,000 debts Snapper owes in the accounting fees pursuant to the terms). She requested that out of the $327,500 owing, Snapper contribute a minimum of $50,000 to ensure that there would be sufficient funds in the estate to cover all legal fees, accounting fees and tax obligations;

(c) Murdoch responded that while he could appreciate Vicki’s wish to retain funds in the estate in order to allow for taxes and further possible expenditure, Angelo and Snapper did not instruct him to consent to providing $50,000 towards settlement on Friday;[48]
[48]Exhibit ANM–34 to the Murdoch affidavit.

(d) Rebecca responded that Madgwicks were currently in the process of finalising settlement figures to ensure there would be sufficient funds in the estate if a distribution is made and that she would revert back to Murdoch as soon as possible noting, however, that they will require some tax advice on the matter;[49]
[49]Exhibit ANM–35 to the Murdoch affidavit.

(e) Murdoch responded, saying that he took Rebecca’s point about the tax advice, ‘although with my tax background I am quite sure the CGT issue is a simple one. The estate pays CGT on both its portions if the purchases were after 20 September 1985. Do you agree? Is all in order for settlement to occur tomorrow?’;[50]

(f) Rebecca responded that ‘we require’ Angelo contribute a minimum of $50,000 to ensure that there will be sufficient funds in the estate to cover all liabilities of the estate;[51]

(g) Murdoch responded (after apparently having a telephone conversation with Rebecca) that Angelo was still adamant that he should not be required to provide funds at settlement the next day and that, hopefully, tax advice in the next few hours would bring their clients closer together on the issue.[52]

[50]Exhibit ANM–36 to the Murdoch affidavit.

[51]Exhibit ANM–37 to the Murdoch affidavit.

[52]Exhibit ANM–38 to the Murdoch affidavit.

There was no settlement on 9 March 2018. The solicitors for the parties exchanged ‘without prejudice’ correspondence. No person on behalf of the plaintiffs sought to deliver any documents or make any payments as required by the Terms. On Monday 13 March 2018 Murdoch sent an email to Nasimi (copied to Rebecca and others) and stated:

(a) the Terms are now void owing to Vicki’s breach;

(b) all agreements regarding rental income owing to any party from the Rosebud or the Brunswick properties are also therefore void;

(c) our client intends to immediately inspect the Rosebud property for any damage caused to it;

(d) it follows that the Rosebud property is no longer to be used by any beneficiary of the estate for personal use until the estate is distributed; and

(e) the Rosebud property should be forthwith placed on the rental market and we stand ready to assist in that process. Should this not occur, our client will consider their options for recovery of loss of rental income.[53]

[53]Exhibit ANM–39 to the Murdoch affidavit.

Nasimi of Madgwicks responded the same day, rejecting Murdoch’s contentions and demanding that Snapper provide to Vicki an executed transfer of Snapper’s interest in the Rosebud property by no later than 16 March 2018, that Snapper provide the confirmation from NAB of its release of Vicki and the deceased estate as required by cl 9 of the terms by 16 March 2018, and other matters relevant to obtaining a completion of the Terms.[54]
[54]Exhibit SN-7 to the first Nasimi affidavit.

Procedural history

This proceeding was commenced on 19 March 2018. The initial claim was that the agreement reached on 11 December 2017 entitled ‘Terms of Settlement’ (called the first contract) was partly written, partly oral, and partly to be implied. In so far as it was written, it was contained in the Terms. In so far as it was oral, it was constituted by a series of telephone calls between Angelo and Nasimi on 11 December 2017. In so far as it is to be implied, the implication was to give efficacy to the contract. It was then said that on 15 February 2018 there was a second contract whereby the parties agreed to comply with the first contract only if the defendant would distribute the estate on the settlement day, 9 March 2018, instead of 30 days after the settlement day.

On Friday, 23 March 2018, Murdoch wrote to Nasimi, again asserting the terms had been terminated and stated that the plaintiffs intended to tenant the Rosebud property, unilaterally, and for that purpose would enter the property and change the locks.[55] Nasimi responded the same day, strongly encouraging Murdoch to advise his client to refrain from attending the property to change the locks, especially in the light of the ongoing court proceedings that his clients had commenced.[56] In response, Murdoch informed Nasimi that the attendance to change the locks would proceed the next day unless Vicki provided Angelo with the keys to the property so that it can be tenanted.[57]
[55]Exhibit SN-9 to the first Nasimi affidavit.
[56]Exhibit SN-10 to the first Nasimi affidavit.
[57]Exhibit SN-11 to the first Nasimi affidavit.

On Saturday, 24 March 2018, Nasimi sent a further email to Murdoch confirming that it was Vicki’s position that the terms remained on foot, that Snapper is in breach of them, and confirmed that Vicki is ready, willing and able to perform all of her obligations under the terms, including to pay to Snapper the amount referrable to its interest in the Rosebud property, as she was on 9 March 2018.[58]
[58]Exhibit SN-12 to the first Nasimi affidavit.

Vicki attended the Rosebud property on 27 March 2018 and found that the locks had been changed. On Wednesday, 28 March, Murdoch emailed Nasimi a letter informing that Snapper was currently attempting to rent the Rosebud property and had sought an authority from a real estate agent. The authority was attached to the letter and it was said that ‘We expect your client to sign this authority to enable the property to be rented’. The letter also advised that Snapper had instructed ‘trades’ to prepare the property throughout the long weekend so it can be tenanted shortly thereafter. Failing the return of the signed letter of authority, Murdoch stated that he was instructed to seek injunctive relief as a part of the proceeding to ensure that the authority is signed and the property can be properly tenanted for the benefit of all parties.[59]
[59]Exhibit SN-13 to the first Nasimi affidavit.

Nasimi responded that day, informing Murdoch that he would shortly serve an application for injunctive relief in respect of their attendance at the Rosebud property. Various incidents of concern were referred to in the letter involving Angelo and an undertaking from Snapper that it will instruct Angelo not to attend the Rosebud property for any reason whatsoever was sought.[60]
[60]Exhibit SN-14 to the first Nasimi affidavit.

On 29 March 2018, Vicki delivered a defence and counterclaim, denying the second contract and making much the same counterclaim that she now makes.

By summons filed 5 April 2018, Vicki, as defendant and counterclaimant, applied for an interim and interlocutory injunction restraining the plaintiffs from entering, occupying or otherwise dealing with the Rosebud property. That application was supported by the first Nasimi affidavit. On 6 April 2018, upon the undertaking by Counsel for the plaintiffs not to enter, occupy or otherwise deal with the Rosebud property, I adjourned the summons for hearing on Friday, 20 April 2018, and made directions for the filing of affidavits. On 12 April 2018, the plaintiffs amended their statement of claim, giving up the claim that there was a second contract and raising the claim that the terms are void or are unenforceable that are now made.

When the defendant’s application for an interlocutory injunction came on for hearing on 20 April 2018, upon the defendant giving the usual undertaking as to damages, the plaintiffs undertook not to enter, occupy or otherwise deal with the Rosebud property until the hearing and determination of the proceeding, including the counterclaim. Directions were then made for the progress of the proceeding.

Plaintiff’s claims

The plaintiffs’ amended statement of claim sets out formal matters identifying the parties, the two properties and the fact that at mediation on 11 December 2017 they entered into the Terms (which are set out almost verbatim), and pleads that:

(a) the Terms are void or unenforceable by reason of the following:

(iii) They were not signed by Vicki in her capacity as executor of the will and trustee of the estate of the deceased;

(iv)The parties have failed to comply with s 32 of the Sale of Land Act 1962 (Vic) (SOLA) because no vendor’s statement was or has been provided;

(v) There is no provision for the transfer of the Rosebud property and the Brunswick property into the name of Vicki in her capacity as executor of the will and trustee of the estate of the deceased;

(b) The Terms are void for uncertainty because they do not deal with:

(i) the liability for GST on the transfers of the interest in land and payment of the Accounting Payment is not addressed, and other GST related matters;

(ii) what would occur if settlement could not or did not take place on 9 March 2018, and related matters;

(iii) what would occur if certain provisions of the Terms were not complied with; and

(iv)the transfer of the interests held by the deceased estate in the properties into Vicki’s name were not addressed;

(c) Accordingly, the parties had not reached finality and were not content to be bound immediately and exclusively by the Terms until a more formal contract of sale and vendor’s statement were drawn up and executed and for that reason the Terms fall within Class 3 in Masters v Cameron.[61]

[61](1954) 91 CLR 353.

For those reasons, the plaintiffs seek a declaration that the Terms are void or unenforceable and orders pursuant to s 225 of the PLA for the sale of each of the Rosebud and Brunswick properties and for the distribution of the net proceeds of the sales.

Defendant’s claims

Vicki claims the Terms of Settlement are valid and enforceable and that Snapper and Angelo have breached those Terms of Settlement.[62] She seeks orders for specific performance of the Terms and damages for breach of the Terms, or damages in lieu.[63]
[62]Amended Counterclaim filed 18 April 2018, [14]-[21].
[63]Counsel for Snapper and Angelo complained that there were no proper particulars of the damages alleged to have been suffered for breach by Snapper of the Terms. The damage, however, is the loss of use of the monies payable under the Terms, less the amounts to be paid by Vicki and the deceased estate: see Defence to Amended Statement of Claim and Amended Counterclaim, [22]. In the circumstances of this case it is a simple calculation.

If the Terms are found to be void or unenforceable, then in addition to the orders sought by the plaintiffs for the sale of the properties, and a distribution of the proceeds, Vicki seeks an accounting and compensation pursuant to s 233(1) of the PLA in relation to the use of and income derived from the Brunswick property by Snapper or Angelo from 7 March 2014.

In relation to the claim that the Terms are void for uncertainty, Vicki provides detailed responses to which I refer when dealing with the submissions and my consideration of them.

Submissions and Consideration

I will deal with the parties’ submissions and my consideration of them under headings that distinguish the separate claims and arguments advanced.

Are the Terms final and binding?

The first issue that arises is whether the parties reached finality in arranging all the terms of their bargain and intended to be immediately bound; or whether they intended to be bound only when formal contracts were executed. This issue requires consideration of whether the parties intended to make a concluded bargain and whether the Terms are void and/or unenforceable.[64]
[64]Plaintiffs’ Closing Submissions filed 27 October 2018, 2 [2]–[3].

The plaintiffs contend that the parties did not intend to make a concluded bargain until they executed a formal contract. As a result, the parties had not reached finality and were not content to be bound immediately and exclusively by the Terms until more formal contracts of sale and vendor’s statements were drawn up and executed.[65] In short, it is the plaintiffs’ argument that the Terms fall into the third class of agreements identified by the High Court in Masters v Cameron.[66]
[65]Ibid 2 [4].
[66](1954) 91 CLR 353.

The nub of the argument advanced by the plaintiffs that the Terms were not intended to be final and binding is that there were simply too many matters of importance on which the parties had not reached a consensus for it to be otherwise.[67] The plaintiffs maintain that either the Terms are not binding because they do not include the detail necessary in a contract of this character or the Terms are void for uncertainty because they do not address a number of allegedly critical matters, summarised above (see [39(a)-(c)]).
[67]Al Azhari v 27 Scott Street Pty Ltd [2017] VSC 600, [32] (Almond J) (Al Azhari).

The plaintiffs adopted the reasoning in Al Azhari that –

(a) where, as in this case, the parties retained legal advisers who attended the mediation and where Counsel for the defendant (in both her capacities) drew the Terms and the solicitor for the plaintiff executed them, reasonable business people would not have intended to enter into a binding agreement for the sale of land in contravention of SOLA provisions with the consequent risk of prosecution for offences under that Act; and

(b) further, reasonable business people in the position of the parties seeking finality in resolution of litigation would not wish to settle proceedings on the basis of entering into Terms which were susceptible to rescission by Snapper (in respect of the purchase of the Brunswick property) and Vicki (as purchaser of the Rosebud property).[68]

[68]Al Azhari [2017] VSC 600 [49] – [51].

The defendant maintains that by application of the relevant principles of interpretation, the Terms show that the parties intend to be bound immediately and that if there is any ambiguity about that, the extrinsic materials that are permitted to aid in the construction of the Terms also lead to the conclusion. In addition to the lack of any objective evidence that the Terms were not binding, the parties’ conduct post execution evidences an intention to be bound, as set out above at paragraphs [15] – [28]. It was not until after this proceeding was commenced in March 2018 that it was first suggested by the plaintiffs that the Terms may be void or unenforceable. Further, by allowing the defendant to consent to the dismissal of the VCAT proceeding in part performance of the Terms,[69] the plaintiffs are prevented from asserting the parties objectively intended that the terms were not binding.[70]
[69]Exhibit VL-8 to the Lentini affidavit.
[70]Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428-429; Defendant’s Closing Submissions filed 19 October 2018, 13 [54], [55].

The defendant further contends that the Terms do not fall into any category of Masters v Cameron because there is no indication that the parties intended to enter into any further document to give effect to the agreement. This is evident not only on the face of the Terms but also from post-contractual communication between the parties, where there was no attempt to further negotiate terms or to document them.[71]
[71]Ibid 14 [58].

In Masters v Cameron,[72] Dixon CJ, McTiernan and Kitto JJ identified three classes of case where parties have been in negotiation, have reached agreement on terms and also agree that the subject matter of the negotiation would be dealt with by a formal contract.
[72](1954) 91 CLR 353.

(a) First, the parties may have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect;

(b) Second, the parties may have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of them conditional upon the execution of the formal document; and

(c) Third, the parties may intend not to make a concluded bargain at all unless and until they execute a formal contract.[73]

[73]Ibid 360.

In Sinclair, Scott & Co v Naughton,[74] Knox CJ, Rich and Dixon JJ identified a fourth class of case, namely ‘...one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms’.[75] This proposition has since been recognised in subsequent cases.[76]
[74](1929) 43 CLR 310, 317 (Sinclair Scott & Co).
[75]See also Civil & Allied Technical Construction Pty Ltd v A1 Quality Concrete Tanks Pty Ltd [2015] VSCA 75 12, [36]-[37].
[76]Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631; Lucke v Cleary (2011) 111 SASR 134.

The High Court noted in Masters v Cameron that a binding contract exists if it falls into either of the first two classes. In relation to agreements belonging to the third class, ‘[t]hey are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own’.[77] In that particular case, the High Court was primarily concerned with an agreement for the sale of farming property, which included as a final statement:

This agreement is made subject to the preparation of a formal contract of sale which shall be acceptable to my solicitors on the above terms and conditions, and to the giving of possession on or about the Fifteenth Day of March 1952.[78]

[77]Masters v Cameron (1954) 91 CLR 353, 360-1 (citation omitted).

[78]Ibid 359.

The Court highlighted this final sentence and asserted that ‘whether there is a contract depends entirely upon the meaning and effect of the final sentence in that portion of the document which the appellant signed’,[79] before concluding that the effect of this statement was such that there was no binding contract for the sale and purchase of the property in question.
[79]Ibid 360 (emphasis added).

As a point of distinction, a clear statement that the agreed terms are ‘subject to contract’ does not exist in the Terms agreed upon between the plaintiffs and the defendant. Indeed, the Terms do not contain any similarly worded statements to that effect. It follows that, prima facie, the Terms do not envisage the execution of a formal contract in the future.

However, the lack of an explicit ‘subject to contract’ statement in the Terms is not determinative by itself. Sir George Jessel MR in Winn v Bull,[80] cited in Masters v Cameron, explained that

[w]hen [an agreement] is not expressly stated to be subject to a formal contract it becomes a question of construction, whether the parties intended that the terms agreed on should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail.[81]

[80][1877] 7 Ch D 29.

[81]Ibid 32.

In Masters v Cameron, the High Court itself recognised that

[t]he question depends upon the intention disclosed by the language the parties have employed, and no special form of words is essential to be used in order that there shall be no contract binding upon the parties before the execution of their agreement in its ultimate shape.[82]

[82]Masters v Cameron (1954) 91 CLR 353, 362 (citation omitted).

From the above authorities it follows that, in the absence of statements such as ‘subject to contract’ or such similar expressions, it will be necessary to examine the construction of an agreement to ascertain the intention of the parties.

The construction of a contract is to be determined objectively, and in the case of a commercial contract it is necessary to ask what a reasonable business person would have understood the terms to mean. The approach which should be taken to the construction of commercial contracts was enunciated by the High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[83] as follows:

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.[84]

[83](2015) 256 CLR 104.

[84]Ibid 116-17, [46]-[50].

In Queensland Phosphate Pty Ltd v Korda,[85] the Victorian Court of Appeal considered a very similar question to the question arising in this proceeding, namely whether an exchange of emails between solicitors, one containing an offer to settle proceedings, the other containing an acceptance of the offer, constituted an immediately binding agreement. The Court characterised the legal principles as follows:

First, the question of whether there was a binding agreement is one that falls to be determined objectively from the terms of the emails, read in the light of the surrounding circumstances and having regard to the commercial context in which they were exchanged. If an essential term was not agreed, then the ‘agreement’ is incomplete and did not give rise to an enforceable contract. Moreover, the existence of matters of importance on which the parties have not reached consensus will render it less likely that they intended immediately to be bound before the execution of a formal document. Secondly, in determining whether a binding contract was in fact formed, regard may be had to the parties’ subsequent communications: (1) in order to see what was important or essential to the transaction; (2) as admissions; and (3) as probative of the parties’ contractual intention.[86]

[85][2017] VSCA 269 (Queensland Phosphate v Korda).

[86]Ibid [37], citing Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141, [77] and Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149, [73]; Gangemi v Osborne [2009] VSCA 297, [23]-[24].

In Nurisvan Investment Ltd v Anyoption Holdings Ltd,[87] the Victorian Court of Appeal considered whether the Heads of Agreement entered into by the parties was a binding agreement. The Court of Appeal, relying upon GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd,[88] reiterated that, when considering whether a contract is binding, the intention of the parties is critical. This intention is to be established objectively from the terms of the document, construed in the context of the surrounding circumstances. The commercial context and the surrounding circumstances of the parties’ dealings should be taken into account.[89]
[87][2017] VSCA 141 (Nurisvan).
[88](1986) 40 NSWLR 631.
[89]Nurisvan [2017] VSCA 141, [106].

The circumstances surrounding the current proceeding are that the parties entered into negotiations and agreed upon the Terms in order to resolve the VCAT proceeding relating to the distribution of the deceased’s assets and the separation of the interests of Snapper and Vicki in the two properties consequent on the death of the deceased. Recital G of the Terms (above at [13(f)]) makes clear the intention of the parties was to resolve the VCAT proceeding, as well as other issues relating to the estate of the deceased, in accordance with the provisions in the Terms.[90] The recitals form part of the agreement.[91] The Terms also contain a final date on which the relevant transactions are to be completed, 9 March 2018 being the Brunswick Payment Date.[92] Furthermore, cl 13 clarifies that ‘[t]he parties agree to execute all documents and do all things necessary or reasonably required in order to complete the transactions which are the subject of this agreement’.[93]
[90]Terms rec G.
[91]See cl 1 of the Terms.
[92]Ibid cl 2(2).
[93]Ibid cl 13.

These statements make clear the finality of the Terms and the intention of the parties to be bound by it. The phrase ‘execute all documents’ contained in cl 13 does not refer to the execution of a formal contract. Rather, when read together with recital G, it refers to the execution of those documents required to bring about the completion of the transactions stipulated in the Terms.

Clause 13 also encapsulates the general rule of contracts identified by the High Court in Butt v McDonald[94] that ‘each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract’.[95] It is not necessary to determine whether this implied term is applicable to the Terms as the Terms already include an express statement to that effect.
[94](1896) 7 QLJ 68; see also Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd, (1979) 144 CLR 596, 607; Ventura v Ventura ]2018] VSC 485, [17]-[18], [26].
[95]Ibid 70–1.

For the purpose of determining whether the Terms are a concluded bargain, regard may be had to the parties’ post-negotiation conduct.[96] The post-negotiation communication between the plaintiffs’ and the defendant’s lawyers that I have set out above demonstrates graphically the intention of the parties to be bound by the Terms. In the exchange of emails between Patten Robins Lawyers and Madgwicks Lawyers tendered into evidence, the plaintiffs convey an intention to abide by the Terms. For example, on Monday 26 February 2018, Murdoch stated in an email to Rebecca that Mr Bertuna had nominated Snapper to benefit under the will of the deceased pursuant to cl 10 of the Terms.[97] On 1 March 2018, Murdoch further stated in an email to Rebecca that he would provide confirmation that NAB will release Vicki and the estate of the deceased from all claims against them in respect of the Brunswick mortgage, upon completion of the transfer in accordance with cl 9 of the Terms.[98]
[96]Gangemi v Osborne; Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd [2009] VSCA 297, [24].
[97]Exhibit ANM-8 to the Murdoch affidavit.
[98]Exhibit ANM-13 to the Murdoch affidavit.

The defendant, for its part, consented to the dismissal of the VCAT proceeding as stipulated in cl 15 of the Terms.[99] Moreover, the defendant also sent via Madgwicks Lawyers to Patten Robins Lawyers completed applications for registration as proprietor of the deceased’s interest in the Brunswick and Rosebud properties as the deceased’s legal personal representative.[100]
[99]Exhibit VL-8 to the Lentini affidavit.
[100]Exhibit VL-9 to the Lentini affidavit.

As regards the settlement of the residue of the estate on 9 March 2018 requested by the plaintiffs, this was merely a request and the defendant was not bound by the Terms to comply with it. The following excerpt from an email sent by Murdoch to Rebecca is worth highlighting:

We would appreciate if your offices could kindly forward draft figures for the distribution of the estate as though it would occur on or before 9 March 2018. We would be grateful for your indication in writing that this can definitely occur on 9 March 2018, so our respective clients do not have to provide their own funds in settling the properties on that day also. If this cannot occur and the parties need to revert to the 30 day time frame under [the Terms] for distribution of the estate, our client will need immediate notice to source funding for these settlements.[101]

[101]Exhibit ANM-8 to the Murdoch affidavit (emphasis added).

The above excerpt makes clear that the plaintiffs were aware of the 30 day time limit agreed upon in cl 11 of the Terms. The request to settle the residue of the estate on 9 March 2018 was not within the ambit of the Terms and, as such, the defendant was not obliged to comply with that request. In the absence of a formal agreement from the defendant that the remainder of the estate would be distributed on 9 March 2018 the plaintiffs should have proceeded as if the original terms of the Terms were in operation. It follows that the plaintiffs’ request cannot be construed as an intention to negotiate further terms since the Terms already stipulate an explicit obligation.

Section 32 of the Sale of Land Act

The plaintiffs contend that the defendant has failed to comply with s 32(1) of the SOLA, which requires a vendor under contract for the sale of land to give to the purchaser a signed statement containing certain matters specified in the SOLA.[102] Such statements are commonly referred to as a ‘section 32 statement’ or a ‘vendor’s statement’. Pursuant to s 32K(3), a purchaser retains the right to rescind a contract if the vendor fails to provide a vendor’s statement. However, Counsel for the plaintiffs clarified in the oral submissions that the plaintiffs do not seek to invoke that right.[103] Rather, the plaintiffs contend that the lack of vendor’s statement renders the Terms void or unenforceable. Alternatively, they contend that the defendant’s failure to provide a vendor’s statement manifests an intention to execute a further formal contract.[104]
[102]SOLA s 32(1).
[103]Transcript of Proceedings, Snapper Holdings Pty Ltd v Lentini (Supreme Court of Victoria, S CI 2018 00979, Associate Justice Derham, 8 October 2018) 150.
[104]Ibid 149.

The defendant admits that it did not provide the plaintiffs with a vendor’s statement with respect to the Brunswick property. Indeed, it is common ground that no vendor’s statements as required by s 32 were given by either vendor (Vicki in both her capacities in relation to the Brunswick property and Snapper in relation to the Rosebud property). Vicki responds, in summary:

(a) a failure to comply with s 32 of the SOLA does not make a contract for the sale of land void or unenforceable;

(b) the right to rescind a contract of the sale of land for a failure to comply with s 32 arises pursuant to s 32K of the SOLA. Snapper has not sought to rescind the Terms pursuant to s 32K;

(c) if Snapper had sought to rescind, the defence arising under s 32K(4) would have been run by Vicki (in both her capacities). That provision negatives the right to rescind where the Court is satisfied that a vendor has acted honestly and reasonably and ought fairly to be excused for the contravention and the purchaser is substantially in as good a position as if all the relevant provisions had been complied with;

(d) the transfer of co-owned land from one co-owner to another does not constitute a sale of land as contemplated by the SOLA. The requirement for a vendor’s statement was intended to replace caveat emptor with ‘caveat vendor’, and could not have been intended to have any material effect on a co-owner selling/transferring to another co-owner.

It is clear that the lack of a vendor’s statement does not automatically render the Terms void, but rather makes the Terms voidable.[105] Furthermore, a purchaser’s right to rescission as prescribed in s 32K is not automatically invoked; the section makes clear that a purchaser may rescind a contract. The plaintiffs have not sought to invoke this right.
[105]Hollingsworth v Noakes (1992) V ConvR 54-446; [1992] VicSC 308 (21 July 1992, Byrne J).

There is no basis to conclude that the Terms are void or unenforceable because of the failure of both Snapper and Vicki (in both her capacities) to give a vendor’s statement in relation to the interests in the properties they each are to sell and transfer under the Terms. There is nothing in the provisions of the SOLA that would render the Terms Void for that non-compliance. This is confirmed by the terms of s 32K(4) of the SOLA, which negatives the right to rescind a contract for the sale of land where the conditions specified are satisfied. The fact that the right to rescind is not available to the purchaser where the vendor satisfies the Court of the two conditions set out in the sub-section, means that the failure to give the vendor’s statement is not itself invalidating. It gives to the purchaser the right to rescind and no more.

In this case, I agree with Vicki’s submission that if there had been a notice by Snapper purporting to rescind the Terms (in relation to the purchase of the interests of Vicki, both personally and as executor of the estate, in the Brunswick property) the Court would, very likely, have been satisfied that the two conditions in s 32K(4) had been met.

The plaintiffs also contend that the lack of vendor’s statements points to the parties’ intention to execute a further formal contract. The plaintiffs rely on the case of Al Azhari,[106] where Almond J found that the parties to the proceeding had not reached finality in relation to the terms agreed at mediation because, amongst other things, a vendor’s statement had not been provided and, as a result, the terms would be in breach of s 32 of the SOLA if they were found to be immediately binding.[107] In reply, the defendant responds that the current proceeding should be distinguished from Al Azhari for a number of reasons, including that the terms agreed at mediation in that case contained a statement that a further document was contemplated to be executed by the parties at a later time.[108] No such statement to that effect is included in the Terms.
[106][2017] VSC 600.
[107]Ibid [49].
[108]Transcript of Proceedings, Snapper Holdings Pty Ltd v Lentini (Supreme Court of Victoria, S CI 2018 00979, Associate Judge Derham, 9 October 2018) 13.

A mechanical application of Almond J’s ruling in Al Azhari should not follow. The factual circumstances of that case differs from this case at a number of levels. Apart from the fact that the terms in that case included an express statement that the terms were ‘to be more fully engrossed’,[109] those terms were also not set out to the same level of detail as are the Terms in this case.
[109]Al Azhari [2017] VSC 600, [7].

The Victorian Court of Appeal noted in Molonglo Group (Australia) Pty Ltd v Cahill[110] that Al Azhari was fact-specific to the extent that the outcome turned on the particular document in issue and the factual context in which that document arose.[111] On this basis, it cannot be concluded that the lack of a vendor’s statement manifested an intention of the parties to execute a formal contract and that the Terms are not immediately binding.
[110][2018] VSCA 147.
[111]Ibid [171].

It is in these circumstances not necessary to decide whether, as Vicki contends, the transfer of co-owned land from one co-owner to another does not constitute a sale of land as contemplated by the SOLA. But as the parties argued the point I will express some views, obiter, on that question.

The nature of a vendor’s statement must be analysed in order to ascertain whether the Terms attract the application of s 32 of the SOLA. In 1978, the Committee of Inquiry into Conveyancing (the Committee) was established to examine all aspects of conveyancing in Victoria and to make recommendations for any necessary or desirable changes to existing conveyancing laws and practices.[112] In its final report, the Committee concluded that ‘it is desirable that present practice be varied so as to place upon the vendor the onus of providing sufficient information to disclose any defects in title, any mortgages, charges or encumbrances and any restrictions upon the use of land in question’.[113]
[112]Committee of Inquiry into Conveyancing, Parliament of Victoria, Interim Report of Committee of Inquiry into Conveyancing (1980) 3.
[113]Committee of Inquiry into Conveyancing, Parliament of Victoria, Further and Final Report of Committee of Inquiry into Conveyancing (1980) 8.

The Committee came to this conclusion based on the belief that the principle of caveat emptor had its limitations in Victoria since a purchaser does not always have ‘the same ease of access to the information as does the vendor, to satisfy himself that a good title, free from encumbrances and other restrictions, can be obtained from the vendor’.[114] These statements clarify that the basis for placing the onus on vendors is to facilitate access to information regarding the land in question that would otherwise be difficult for purchasers to obtain.
[114]Ibid 7.

The Committee’s Report was endorsed by the (then) Attorney-General of Victoria in the second reading speech for the Sale of Land (Amendment) Bill 1982 (Vic). This Bill proposed the amendment of the SOLA to introduce the principle of caveat vendor, now encapsulated in s 32, so that ‘vendors of land are under an obligation to supply sufficient information relating to the property to a purchaser prior to obtaining a signature to a contract of sale’.[115] The requirement of a vendor’s statement was ultimately inserted in the SOLA by the Sale of Land (Amendment) Act 1982 (Vic). In 2014, the Sale of Land (Amendment) Act 2014 (Vic) made important amendments to s 32 in order to ‘reform, simplify and modernise the provisions’.[116] Notwithstanding these amendments, the purpose of a ‘vendor’s statement’ or ‘section 32 statement’ remains to allow purchasers of land to gain important information regarding that land.
[115]Victoria, Parliamentary Debates, Legislative Assembly, 14 September 1982, 223 (John Cain).
[116]Victoria, Parliamentary Debates, Legislative Assembly, 2 April 2014, 1196 (Robin Scott).

If the primary purpose for introducing an obligation on vendors to produce a statement is to facilitate access to information, then it must be assessed on the facts whether the plaintiffs did, or could, have accessed that information in the absence of a vendor’s statement. The plaintiffs’ submissions relating to the income and expenditure in respect of both properties (submissions made for the purpose of the relief the plaintiffs’ claimed upon a sale of the two properties by order of the Court on the basis that the Terms did not constitute a valid and binding contract) show that, between October and December 2013, Snapper undertook significant renovation works at the Brunswick property.[117] Since February 2014, the Brunswick property has been generating income from tenants occupying the retail and residential premises. Snapper has and continues to retain the rental income in respect of the retail premises of the Brunswick property, in accordance with an alleged agreement with the deceased. Furthermore, following the death of the deceased, Snapper has retained the rental income in respect of the residential premises of the Brunswick property.[118]
[117]Plaintiffs’ Further Written Submissions filed 18 October 2018, 2 [6].
[118]Ibid [8], [9], [11]. I note here that there was reference in the evidence and cross-examination of Angelo to the alleged agreement between Angelo, the deceased and Vicki that Angelo could repay the costs of repairs from rental receipts of the downstairs shop premises. It is not necessary to determine whether there was such an agreement as it is only relevant to a taking of accounts between co-owners, which is unnecessary.

These facts demonstrate that even though the defendant is a co-owner of the Brunswick property, the plaintiffs have had an active and ongoing role in the letting and maintenance of that property. The plaintiffs’ significant and ongoing involvement with the Brunswick property show that they are in a position to access the kind of information that would otherwise be contained in a vendor’s statement, better than the defendant.

There is no mention of co-ownership of land in div 2 of pt 2 of the SOLA (which contains ss 32 to 32P governing ‘Section 32 Statements’), and there is nothing on the face of the definitions of ‘sale’ and ‘land’ to exclude the operation of that division to contracts by which interests in land between co-owners are agreed to be sold.[119] Section 38(6) of the SOLA provides an exemption for co-owners of land in the context of auctions. This section contemplates that vendors of land may be co-owners of that land, and that such vendors may bid in an auction to purchase the interest of other co-owners in that land,[120] provided they comply with certain requirements. In providing a clear exception for co-owners in the context of auctions and, more importantly, omitting an exception for co-owners in the context of s 32, it would appear that the SOLA intends to capture a ‘sale’ of interests in land between co-owners.
[119]By s 2 of SOLA (unless inconsistent with the context or subject-matter) sale is defined to include an agreement for sale an offer to sell and the giving of an option to purchase; and sell and sells have corresponding interpretations; and land is defined to include land of any tenure, and buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other corporeal hereditaments; and also an undivided share in land and any estate or interest in land: see also David P Lloyd and William F Rimmer, Sale of Land Act Victoria (Thompson Reuters, 2015).
[120]SOLA s 38(6)(a).

Prima facie, this would appear to support the plaintiffs’ submission that, in the context of s 32, a sale of interest in land between co-owners is to be treated no differently than a sale by a vendor to a purchaser in an arm’s length transaction.

Terms not signed on behalf of deceased estate

The plaintiffs also contend that the Terms were not signed by Vicki in her capacity as executor of the will and trustee of the estate of the deceased but only in her personal capacity. Because the Terms are a contract for the sale or other disposition of interests in land and were not signed by Vicki in her capacity as executor, they are unenforceable for non-compliance with the modern equivalent of the Statute of Frauds.[121] The plaintiffs’ amended statement of claim pleaded that this made the Terms unenforceable but did not expressly rely on the modern equivalents of the Statute of Frauds.
[121]Instruments Act 1958 (Vic) s 126(1); PLA s 53(1)(a).

The plaintiffs referred to authorities dealing with documents executed by a company and whether the signature of director witnessing the affixing of the common seal of the company[122] or signing on behalf of the company[123] bound the individual signing to guarantees also contained in the document. What is clear from both cases cited by the plaintiffs is that whether the individual signatory is bound depends on determining that person’s intention from the objective facts, upon a consideration of the document in question and without reference to any oral evidence of subjective intention. Each case turned on its own facts.
[122]National Commercial Banking Corporation of Australia Ltd v Cheung (1983) 1 ACLC 1326.
[123]Deeks v Little Moreton Pty Ltd (1995) 14 WAR 58.

The decision of Clarke J in National Commercial Banking Corporation of Australia Ltd v Cheung[124] refers to the leading decision of Lord Atkin in Ariadne Steamship Co Ltd v James McKelvie & Co[125] where the issue arose in circumstances where the signature was qualified by the words ‘for and on behalf of James McKelvie & Co as agent’. The propositions that emerge from the decision (so far as relevant to the present case) are tantalisingly simple:[126]

(a) that if the assent to the contract clearly appears from the form of the signature to be qualified, it is impossible to charge the signer on the footing that that there is an unqualified assent;

(b) that if the assent is unclear, or ambiguous, the court must look to the body of the contract to see whether the signer was intended to be a party or not

[124](1983) 1 ACLC 1326.

[125](1922) 1 KB 518, 535 (Ariadne).

[126]Ariadne (1922) 1 KB 518, 536.

In National Commercial Banking Corporation of Australia Ltd v Cheung,[127] Clarke J reviewed the authorities since the decision of Lord Atkin in Ariadne and concluded that the distinction he drew was correct and he should be guided by it.[128]
[127](1983) 1 ACLC 1326, 1330-1331.
[128]Ibid 1331.

Vicki contended:

(a) she is identified as a party to the Terms in both her capacities;

(b) the Terms were executed at a mediation conducted as part of the VCAT Proceeding (and under the VCAT Proceeding heading), in which Vicki as executor was a party and where Vicki necessarily attended in her capacity as executor of the estate of the deceased;

(c) the Terms impose obligations upon Vicki as executor of the estate of the deceased, obligations which would not be binding if she were not a party to the agreement;[129]
[129]Bond v Rees Corporate Advisory Pty Ltd [2013] VSCA 13, [13], [56]-[60].

(d) one of the principal purposes of the Terms was to resolve the VCAT proceeding and the co-ownership of the Brunswick and Rosebud properties. The Terms could only be effective in achieving this purpose if Vicki as executor of the estate were bound;[130]

(e) to the extent that signing is required at law (albeit it is not so pleaded), the requirement is to sign and not to subscribe;[131]

(f) it is undisputed that the Terms are signed by Vicki, although the capacity in which she signed is not identified next to her signature.

[130]Ibid.

[131]PN Wikramanayake QC and James Barber, Thomson Reuters, Voumard: The Sale of Land [2400].

Vicki further submitted that it is irrelevant whether Vicki executed the Terms in her capacity as executor because she accepted the Terms in that capacity by her conduct by consenting to the dismissal of the VCAT Proceeding on the day the Terms were executed,[132] all parties ratified the Terms in correspondence,[133] and the Terms have been partly performed.[134]
[132]N C Seddon and R A Bigwood, Cheshire & Fifoot Law of Contract (LexisNexis Butterworths, 11^th ed, 2017) [3.23] (Chesire & Fifoot).
[133]Counsel for Vicki produced a table of events and conduct occurring after the Terms were signed which referred to the events identified in these Reasons under the heading ‘events after the execution of the Terms’.
[134]By the dismissal of the VCAT Proceeding and the receipt of all income from the Brunswick property by Snapper.

The arguments advanced by Vicki are compelling. The signature of Vicki on the Terms is unqualified save that under her signature appears the words ‘Vita Lentini (also known as Vicki Lentini)’. In contrast, the signatures of Murdoch appear twice, once as lawyer for Snapper and once as lawyer for Angelo. There is thus no obvious qualification to Vicki’s signature, but there is to Murdoch’s signatures. But equally, it is unclear whether Vicki signs only for herself personally or for herself as executor. That is resolved by reference to the body of the Terms, as set out above in reference to the submissions made on her behalf.

It seems to me to be clear that when the Terms are construed as a whole, and objectively, the signature of Vicki has to be construed as made by her in both her capacities.

Are the Terms void for uncertainty?
No provision for transfers to Vicki as executor of the estate of the deceased

The plaintiffs advanced the absence of a provision to this effect in the Terms as a reason to find that the parties had not reached finality in arranging the terms of their bargain and, it seems, as a basis for the contention that the Terms are uncertain and therefore void or unenforceable. In my view neither proposition is correct.

Vicki submitted that cl 13 of the Terms filled that gap. It provided:

The parties agree to execute all documents and do all things necessary or reasonably required in order to complete the transactions which are the subject of this agreement.

As executor of the will and trustee of the estate of the deceased, it was (and is) within Vicki’s power to transfer the estate’s interest in the two properties into her own name to effect the Terms.[135] This is of course only possible in the case of the Brunswick property if the registered mortgagee produces the certificate of title for that purpose. It is an implied obligation under the Terms (specifically by reference to clauses 9 and 13) that Snapper would assist this to occur. On 1 March 2018, being approximately 1 week prior to the due date for transfer, Vicki provided Snapper with completed applications pursuant to s 49 of the TLA in the approved form.[136]
[135]Transfer of Land Act 1958, s 49 (TLA).
[136]Exhibit VL-9 to the Lentini affidavit, being emails dated 1 March 2018 from Vicki’s solicitor to Snapper’s solicitor.

The absence of a provision of this kind is not, in my opinion, a reason to conclude that the parties had not reached finality in arranging the terms of their bargain. Nor is it a reason to find the Terms void or unenforceable as the plaintiffs seem to suggest in their pleading.

GST provisions

In relation to the claim that the Terms are void for uncertainty because the matter of liability for GST on the transfers of the interests in land and payment of the Accounting Payment, and related GST issues, are not addressed, Vicki submitted, and I agree:

(a) where a taxable supply pursuant to A New Tax System (Goods and Services Tax) Act 1999 (GST Act) is not stated to be exclusive of GST, it is deemed inclusive of GST pursuant to s 9-75 of the GST Act;[137]
[137]“the value of a taxable supply is as follows: Price x 10/11…”

(b) A party must pay the GST on any taxable supply that they make;[138]
[138]GST Act s 9-40.

(c) even if there was a controversy as to whether transfers pursuant to the Terms were GST inclusive or not, such a controversy does not make the Terms void for uncertainty;[139]
[139] Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429, 436-437 (Barton CJ).

(d) if for whatever reason the Court is required to interpret the Terms, the Court should interpret them so that all payments (with the exception of the Brunswick Consideration) are inclusive of any GST. This is the objective intention of the parties because:

(v) there is a specific distinction between the Brunswick Consideration, which is defined as exclusive of any GST,[140] and every other payment or transfer in the Terms of Settlement;
[140]Exhibit SN-5 to the first Nasimi affidavit.

(vi) the correspondence between the parties post-execution of the Terms supports the conclusion that (with the exception of the Brunswick Consideration) the figures in the Terms were the amounts payable.

(e) the plaintiffs have not identified any legal requirement for the provision of a tax invoice and to the extent that an invoice is required at law for the purpose of GST, the obligation is met by cl 13 of the Terms;

(f) the only payment by Vicki to Snapper pursuant to the Terms is the Rosebud Consideration. The Rosebud property is a beach house.[141] It is a residential premises as defined in Division 40 of the GST Act and no GST is payable on the Rosebud Consideration;

(g) the only payments by the estate contemplated by the Terms are distributions of the estate, which is not a supply pursuant to the GST Act as it is the supply of money for no consideration.[142]

[141]Lentini affidavit, [5].

[142]GST Act s 9-10(4)

Other matters making the Terms uncertain

The plaintiffs pleaded that the Terms did not deal with what would occur if settlement could not or did not take place on 9 March 2018, including whether any and what rescission notice could be served or whether the terms set out in the schedule to the TLA were incorporated.

Vicki’s response is, in my view, correct. Vicki contended that the parties to a contract for the sale of land are not divested of their common law rights and remedies merely because the contract relates to land.[143] Contracts for the sale of land have been upheld where they satisfy the four P’s: party, property, price and promises.[144] Express conditions of sale are unnecessary (by reference to Table A of the Seventh Schedule to the TLA or otherwise).[145] In Cavallari v Premier Refrigeration Co Pty Ltd,[146] the High Court noted:

…while the due course of completion of a contract for the sale of land is a matter of some complexity, involving the doing of a number of things by both parties, it is very well settled that an informal or “open” contract, not dealing expressly with any of these matters of detail, may be made and be binding. In such a case law and equity fill in the details, so to speak, providing by way of implication for whatever is necessary to effectuate due performance.[147]

[143] Civoken Pty Ltd v Madden Grove Developments Pty Ltd [2006] VSC 283, [447]; Nund v McWaters [1982] VR 575, 589.

[144] Twynam Pastoral Co Pty Ltd v Anburn Pty Ltd (1989) 6 BPR 97,474, 8.

[145]PN Wikramanayake QC and James Barber, Thomson Reuters, Voumard: The Sale of Land [9050].

[146](1952) 85 CLR 20 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

[147]Ibid 25.

Similarly, the plaintiffs contended that the Terms did not deal with what would occur if cl 8 of the Terms is not complied with.[148] Vicki pointed out, and I agree, that:
[148]Cl 8 provides that ‘Vicki shall not be required to provide any transfers of land in respect of the Brunswick property to Snapper without Snapper tendering payment of the Brunswick Consideration (adjusted for the set-off referred to at clause 12) and the Accounting Payments’.

(a) cl 8 does not impose a positive obligation on any party;

(b) to the extent that cl 8 does not identify in which capacity Vicki ‘shall not be required’ to act, ‘Vicki’ is defined in the Terms as being the applicant in the VCAT Proceeding. That proceeding identifies her in both capacities;

(c) to the extent that any party to the Terms has an obligation pursuant to cl 8 and does not comply with that obligation, such non-compliance would constitute a breach of contract and remedies at common law would necessarily exist. It is no basis to vitiate the bargain of the parties.

The plaintiff also points to the absence in the Terms of what would occur if cl 9 is not complied with.[149] Vicki responded, and I agree, to the extent that Snapper does not comply with cl 9, such non-compliance constitutes a breach of contract and remedies at common law would necessarily exist. Further, by the plaintiff’s defence to counterclaim, Snapper has admitted that it has obtained the confirmation from NAB (although it has not provided it to Madgwicks).
[149]Cl 9 deals with the liability of Snapper for the liabilities of Snapper and Vicki (in both her capacities) to NAB under the Brunswick mortgage.

Specific performance

The plaintiffs submitted that if the Terms are enforceable:

(a) there is no evidence to establish that the defendant was ready, willing and able to complete her obligations under the Terms;

(b) damages are an adequate remedy and there is no evidence of any damage suffered by the defendant – particularly in light of the plaintiffs’ generous open offer;[150]

(c) the defendant has adduced no evidence to support the damages claimed by her.

[150]Exhibit ANM-41 to the Murdoch affidavit.

Relief by specific performance is appropriate where common law damages are inadequate. The Court gives specific performance instead of damages only when it can by that means do more perfect and complete justice.[151] Where a vendor refuses to convey land, a mere award of damages would defeat the just and reasonable expectations of the purchaser.[152] Land is unique and it is sometimes said that there is a fixed rule that the remedy of damages is never an adequate substitute for transfer of the land.[153] In this case that is doubly so because Vicki is already a co-owner of the Rosebud property and therefore is not in the position of most purchasers – her reasonable expectation to own the Rosebud property is greater because she is already a part owner and it is already her family beach house.[154]
[151]Wilson v Northampton and Banbury Junction Railway Co (1874) 9 Ch App 279, 284; Cheshire & Fifoot, [24.4].
[152]Cheshire & Fifoot [24.4].
[153]Cheshire v Fifoot [24.4].
[154]Lentini affidavit [5].

Vicki deposes that she was at 9 March 2018, and more importantly is, ready, willing and able to perform the obligations on her under the Terms.[155] That evidence was not disturbed in cross-examination. To the extent that Vicki has not tendered money to herself as executor of the deceased estate, there is no provision that time is of the essence under the Terms, and it was not contended by the plaintiffs that time is of the essence under the Terms, and the plaintiffs have not identified any basis for being discharged from the performance of the Terms if they are valid and enforceable.
[155]Ibid [19].

There is also no requirement for a party in the position of Vicki to tender performance where it is pointless to do so. The obligations on Vicki under the Terms are dependent on, and concurrent with, the obligations imposed on Snapper. Their obligations are mutually dependant obligations in the sense that they are simultaneous acts to be performed interchangeably.[156]
[156]Foran v Wight (1989) 168 CLR 385, 396 (Mason CJ), 417 (Brennan J), 433 (Dean J), 442-50 (Dawson J), 458 (Gaudron J).

Having regard to the refusal of Angelo to permit the retention of funds in the deceased estate, and the inability of Snapper to complete the transactions without the distribution of the deceased estate (given that he had not apparently obtained a loan to facilitate that completion), it is clear that a tender of performance by Vicki on 9 March 2018 was pointless. Thereafter, Snapper and Angelo maintained the Terms were at an end. There was no purpose in a tender of performance where, in the words of Lord Mansfield in Jones v Barkley:[157]

Take it on the reason of the thing. The party must shew he was ready; but, if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go farther, and do a nugatory act.

[157](1781) 2 Dougl 684, 694; (1781) 99 ER 434, 440; Foran v Wight (1989) 168 CLR 385, 397 (Mason CJ), 417 (Brennan J), 443 (Dawson J).

The requirement of the Terms that Snapper obtain a release from NAB does not prohibit a decree of specific performance because:

(a) the plaintiffs plead that the NAB have confirmed to Snapper that it will release Vicki and the deceased estate,[158] Snapper has just not given it to Vicki;
[158]Plaintiffs’ Reply and Defence to Counterclaim filed 27 April 2018, [27].

(b) the release is not a precondition to settlement of the transfers of land. It can be waived by Vicki in any case, if necessary;

(c) if the release could not be provided, Vicki would receive the benefit of the Terms by retaining the benefit of the acknowledgement and indemnity provided in cl 9 of the Terms in respect of the NAB mortgage debt;

(d) the court can mould its decree of specific performance.[159]

[159]Cheshire & Fifoot, [24.16].

In relation to the damages claim made by Vicki, it is evident that this concerns primarily the use and occupation by Snapper of the Brunswick property. The Accounting Payment, as it is defined in the Terms, was clearly calculated as a compromise payment to Vicki and the deceased estate in respect of they being held out of the receipt of the net proceeds of the renting of that property. That payment will be made in performance of the Terms which I propose to order. Whether there should be further compensation payable to Vicki (in both her capacities) since breach by Snapper may need to be the subject of further evidence or submissions.

Conclusions

The Terms arrived at between the parties on 11 December 2017 are final and binding on them. They constitute a specifically performable contract. It is appropriate in this case to order specific performance of the Terms in favour of Vicki, the defendant. This conclusion means it is unnecessary to consider the evidence and submission of both parties as to the appropriate orders if there were a finding that the Terms did not reflect a final and concluded bargain, were void for uncertainty or were not specifically performable.

It will be necessary for the legal representatives of Vicki to propose orders to give effect to these reasons and for the Court to determine the appropriate orders after hearing further argument by the parties.

SCHEDULE OF PARTIES

S CI 2018 00979
BETWEEN:
SNAPPER HOLDINGS PTY LTD (ACN 155 068 367)	First Plaintiff
ANGELO ANTHONY BERTUNA	Second Plaintiff
- v -
VITA (VICKI) LENTINI (IN HER OWN RIGHT AND AS EXECUTOR OF THE WILL AND ESTATE OF THE LATE LINA BERTUNA	First Defendant
- and -
VITA (VICKI) LENTINI (IN HER OWN RIGHT AND AS EXECUTOR OF THE WILL AND ESTATE OF THE LATE LINA BERTUNA	Plaintiff by counterclaim
- v -
SNAPPER HOLDINGS PTY LTD (ACN 155 068 367)	First Defendant by counterclaim

[2018] VSC 800

20 December 2018