Tax treaties and the scaling back of surcharge land tax and surcharge purchaser duty

21 February, 2023

After several months of negotiating a settlement agreement, and only a couple of days before Christmas, a lawyer sends an email to the lawyer on the other side of the settlement stating that his client “will sign”. The settlement agreement is never signed by the client. Did the lawyer’s email nevertheless bind his client to the agreement?

This question was recently addressed by the NSW Court of Appeal in Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313. In this case, Mr Pavlovic successfully appealed the trial judge’s ruling that his lawyer’s email had bound him to the terms of the written settlement agreement document which had been forwarded by Universal Music Australia Pty Ltd (Universal), even though Mr Pavlovic had never signed that document.

In clarifying the scope of a lawyer’s authority to contract on behalf of their client, the NSW Court of Appeal held that:

  1. Clear and cogent evidence will be required to establish that a lawyer has acted with actual authority to bind the client to a contract.
  2. With the exception of in litigious matters, lawyers do not have ostensible authority to bind a client to an agreement which is the subject of negotiations.
  3. The crucial email communications between the parties’ lawyers needed be considered in light of all the surrounding circumstances including the commercial context and relationship between the parties, the extent and complexity of the negotiations, the terms of the proposed contract, and the way in which the parties had dealt with each other and formalised binding agreements in the past.
  4. If Pavlovic or Universal had instructed their lawyers that they intended to be bound by the terms of an agreement without executing the formal documents, their lawyers should have expressly stated this fact.


In 2005, Mr Pavlovic and Universal entered into a joint venture in respect of the business of a music recording label founded by Mr Pavlovic, Modular Recordings Pty Limited (Modular). Under the agreement, Mr Pavlovic and Universal each held 50 per cent of the shares in Modular.

After a number of disputes in relation to the joint venture arose, in September 2014, the parties mutually agreed that their relationship was untenable and the joint venture should be terminated. They instructed their respective lawyers to negotiate the terms of settlement.

After several amendments in the course of negotiations, Universal’s lawyers emailed the proposed Deed of Settlement and Release (Proposed Deed) to Mr Pavlovic’s lawyer on 23 December 2014. The Proposed Deed included a term that required Mr Pavlovic to cause the transfer of his 50 per cent shareholding in Modular for $100 by the Execution Date.

One day later, Mr Pavlovic’s lawyer responded to the email from Universal’s lawyers confirming the instructions he had received from his client, including that “he will sign”. A follow up email, sent 10 minutes later, again confirmed that “Mr Pavlovic is prepared to sign the documents”. Further emails were exchanged between the parties over the course of the afternoon, with the final correspondence from Universal’s lawyers allowing “Mr Pavlovic a further 48 hours to sign the documents and forward copies to us.”

An executed copy of the Proposed Deed was never provided to Universal’s lawyers. Universal did not send an executed copy of the Proposed Deed or a cheque for $100 to Mr Pavlovic until after 23 February 2015, the date on which Mr Pavlovic purported to terminate the agreement (if any).

In these circumstances, Universal contended that a binding agreement had already been entered into by the parties on Christmas Eve, by virtue of the fact that Mr Pavlovic’s lawyer had accepted the offer from Universal to enter into an agreement on the terms of the Proposed Deed, by indicating that his client “will sign”.

The trial judge, the Honourable Justice Sackar, concluded that Mr Pavlocvic’s lawyer had actual authority to bind Mr Pavlovic and that viewed objectively, both parties were content and clearly intended to be immediately bound to the terms of the Proposed Deed (whilst at the same time understanding that there were formalities/administrative requirements that still needed to be attended to).


President Beazley (with whose reasons Bathurst CJ and Meagher JA agreed) delivered the principal judgment, concluding that no contract had been formed between the parties. The following factors pointed towards this conclusion:

  1. The formal context and manner in which the parties had conducted their negotiations in the period of months prior to 23/24 December 2014 indicated an objective intention that the termination of the relationship was to be concluded in a similar manner, that is, by execution and exchange of the Proposed Deed;
  2. The contention that the email exchange between the parties on Christmas Eve had given rise to a binding agreement was contrary to the terms of the Proposed Deed which contained multiple clauses where the parties’ obligations came into effect on and from the “Execution Date”. Further, the Proposed Deed contained an “entire agreement clause”;
  3. The email correspondence between the parties was silent on the issue of whether they intended to be immediately bound to the agreement, and “something more than mere silence would have been required to evince the intention to diverge from the parties’ past practice and the terms of the Proposed Deed”;
  4. The conduct of the parties after Christmas Eve did not support an understanding that the Proposed Deed was binding before signed documents were exchanged. For example, Universal had never sent Mr Pavlovic its counterpart copy of the Proposed Deed, and did not make the payment of $100 to Mr Pavlovich (in consideration for the share transfer as per the terms of the Proposed Deed) until around 2 months later.

Another issue which the Court of Appeal addressed was whether Mr Pavlovic’s lawyer had actual or ostensible authority to immediately bind his client to terms of the agreement contained in the Proposed Deed.

Ostensible authority refers to a situation where a reasonable third party would understand that an agent (in this case, Mr Pavlovic’s lawyer) had authority to act on behalf of the principal (Mr Pavlovic). This means the principal is bound by the agent’s actions even if the agent had no actual authority, express or implied, to act.

As to this issue, the Court of Appeal confirmed that:

  1. The onus lies on the party submitting agency to demonstrate the terms and existence of the agency. Clear and cogent evidence of actual authority on the part of a solicitor to bind his or her client to a contract is required; “a statement by a solicitor that a client “will sign” does not bear the “clear and cogent” meaning that the client has given instructions to the solicitor to immediately bind the client.”
  2. While lawyers have ostensible authority to bind their client to a contract which relates to litigation conducted on the client’s behalf, this exception does not extend to the context of a “potentially litigious” dispute, including where (as here) the parties enter into negotiations so as to avoid litigation.

Take away points

This case serves as an important reminder for lawyers that the means by which negotiating parties intend to bind themselves to a proposed contract should be clearly stated in the contract (i.e. there was no express clause in the Proposed Deed in the above case that the parties would not be bound until all aspects of a formal agreement and, in particular, execution, had been finalised).
The case also emphasises that the question of whether parties intend to be immediately bound is to be determined objectively, and the court will take into consideration all the particular circumstances of the case, including but not limited to the history of dealing between the parties, the nature and terms of the purported contract and the subsequent behaviour of the parties in performing their obligations.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
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