Fiona & John Sinclair Pty Ltd v Burns Bay Services Pty Ltd

Supreme Court of NSW|2022-10-06|Before: Henry J

Solicitors: AR Conolly & Company Lawyers (Plaintiff/Respondents) Kerrs (Defendant/Applicants) File Number(s): 2021/00209242 Publication restriction: Nil

JUDGMENT

This is a dispute concerning a document, entitled "Deed of Release & Indemnity, Settlement of Proceedings" (Deed), that was signed at a mediation on 8 April 2022 attended by the parties in these and related proceedings in this Court (2021/00179061).
The parties in these proceedings are Fiona & John Sinclair Pty Ltd (FJS) and Burns Bay Services Pty Ltd (BBS). The parties in the related proceedings are FJS, the late John Sinclair and Fiona Sinclair on one hand, and Ashod Balanian and Launch Partners Pty Ltd (Launch Partners) on the other.

Evidence and witnesses

In support of their application, the Defendants read affidavits from Mr Balanian, Mr Ellison, Terry Zabetakis and Chris Wakeford.
Ms Zabetakis facilitated the mediation between the parties on 8 April 2022. She is a solicitor and principal of a legal and alternate dispute resolution practice known as The Resolution Hub and a Nationally Accredited Mediator who has practised as a mediator since about 2016 or 2017.
Mr Wakeford is a corporate advisor who was involved in arranging the mediation and attended as a non-party.
The Sinclair parties read parts of two affidavits from their solicitor, Alan Conolly, of AR Conolly & Company Lawyers. Mr Conolly referred to the background and rationale for the BBS Proceedings and annexed documents filed in the BBS and Balanian Proceedings and correspondence following the mediation with the Defendants' solicitor, Tean Kerr, of Kerrs law firm.
Both parties tendered documents, which included Part B of the Court Book, a bundle of documents produced by Ms Zabetakis from her file and text messages between Mrs Sinclair and Mr Wakeford.
Mr Balanian, Mr Ellison, Mr Wakeford and Ms Zabetakis were each cross-examined. Mr Conolly was not.
The affidavits from Mr Balanian, Mr Ellison, Mr Wakeford and Ms Zabetakis referred to communications and events prior to, at and following the mediation. Their evidence was not directly challenged; the Sinclair parties chose not to read the affidavits from Mrs Sinclair and Ms Richards that were contained in Part A of the Court Book. However, there were some factual conflicts in the evidence given by the Defendants' witnesses and the Sinclair parties made submissions that were directed to aspects of their evidence.
To the extent there are conflicts, I have generally preferred Ms Zabetakis' evidence to that of Mr Balanian, Mr Wakeford and Mr Ellison. This is because of her lack of direct interest in the outcome of the proceedings, her evidence being, by and large, supported by the contemporaneous documents, including records produced from her file, and the matters referred to below.
I was not persuaded by the Sinclair parties' submission that there was a need to treat Ms Zabetakis' evidence with caution as she was intent on providing a narrative that was consistent with the high standards of professional mediation practice, she rejected any suggestion of fault on her part and she threw "a fair bit of mud at Mrs Sinclair and Mr Conolly in her affidavit" (T126.15-34).
Ms Zabetakis did not impress me as a witness seeking to embellish the events that had occurred or to suggest that she had taken greater care than that which was portrayed by the objective facts and contemporaneous documents, and I found no reason not to conclude that Ms Zabetakis was a witness of truth and credit. She acknowledged that there were problems with the Deed and apologised if all parties meant to be released were not explicitly mentioned (T83.1-8), conceded when she could not recall things, such as discussions about the value of the BBS business being transferred to another company (T81.15-25), and agreed that she did not say to the participants that they understood that they were entering into the Deed personally and on behalf of the companies (T90.5-8). Her evidence that Mrs Sinclair had told her that probate had been granted may have been an inaccurate recollection but it was not incredible based on her unchallenged evidence that she had been told that Ms Richards was attending the mediation for the estate as the executor under Mr Sinclair's will (T86.3-5).
As to the "mud", I do not consider that Ms Zabetakis' evidence reflected negatively on her given she was responding to matters raised in affidavits from Mrs Sinclair and Mr Conolly that were filed and served but not read by the Sinclair parties and allegations had been made that Ms Zabetakis had influenced Mrs Sinclair and placed pressure on her at the mediation and that Mrs Sinclair did not understand the finality of the agreement to settle, all of which was not pressed at the hearing. However, I accept that it is not necessary to make findings about certain matters that were referred to in Ms Zabetakis' evidence, such as whether Mrs Sinclair threw a book at the mediation and gave an explanation for it.
Mr Wakeford was not an impressive witness. His explanation that he was drunk at the time he sent his WhatsApp messages to Ms Zabetakis that referred to a fixed fee of about 10% and that "[t]here will [be] NO lawyers involved" (T41.47-9) was unconvincing, as was his description that he was "the guy in the middle somewhat" (T45.16) given the evidence indicated that he placed himself in that position and Ms Zabetakis gave evidence that he hoped to secure a fee for his role in the resolution of the dispute (T59.5). That said, overall, I do not consider his evidence and the matters about which he was cross-examined to be of significance in respect of the issues for determination given the Sinclair parties do not press their claims that the Deed is void and unenforceable by reason of his (and the Defendants') misleading and deceptive conduct or is unconscionable, and the legal principles (referred to below) recognise that whether a binding settlement agreement has been entered into is to be determined objectively, by reference to the language of the Deed and the surrounding circumstances.

Facts

The following is a summary of the relevant facts based on the affidavit, oral and documentary evidence.

The parties and the proceedings

Mr Sinclair worked as a mortgage broker and ran a Mortgage Choice franchise until around September 2017. Mrs Sinclair worked with Mr Sinclair in that business. Mr and Mrs Sinclair were the sole shareholders and directors of FJS until Mr Sinclair's death on 23 November 2021, at which time Mrs Sinclair became the sole director of FJS.
Mr Balanian has a background in cryptocurrencies. He was introduced to Mr Sinclair on or about 24 June 2017 by Mr Ellison, who had known Mr Sinclair for about 20 years.
The DCAF was established in 2018 and was managed by BBS. According to the DCAF Information Memorandum, Mr Balanian was the Chief Investment Officer, Mr Ellison was the Chief Executive Officer and Portfolio Manager, Mr Sinclair was the Distribution and Marketing Manager, and Digital Commodity Assets Pty Ltd (DCA) was the corporate trustee.
Mr Balanian and Mr Ellison are directors and shareholders of BBS and DCA.
FJS is a shareholder of BBS and Mr Sinclair is a shareholder of DCA. Mr Sinclair was also a director of BBS and DCA until 21 December 2019. The circumstances in which he ceased being a director of those companies is one of the issues that led to the disputes between the parties.
On 22 June 2021, FJS, Mr Sinclair and Mrs Sinclair commenced the Balanian Proceedings. In their Commercial List Statement, they claim that Mr Balanian and/or Launch Partners engaged in misleading and deceptive conduct in relation to the digital storage of cryptocurrency investment assets and that their dealings with the money they advanced to him for investment in cryptocurrency assets and other cash was in breach of trust. They seek to recover investment funds advanced to Mr Balanian and Launch Partners of $250,000, which they claim is held on trust for FJS, and an award for loss and damage equating to the value of the cryptocurrency and cash in the digital wallet that they can no longer access.
On 22 July 2021, FJS commenced the BBS Proceedings by originating process seeking an order for the winding up of BBS on just and equitable grounds pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth).
According to Mr Conolly's evidence, Mr Sinclair believed that the management and trustee roles for the DCAF had been transferred from BBS and DCAF to DCA Capital Pty Ltd (a company which Mr Balanian and Mr Ellison were associated with) without payment to BBS or DCA or the consent of FJS as a shareholder of BBS, and wished to pursue a winding up application so that a liquidator could investigate FJS' claims that BBS had, or should have, money owing to FJS or to Mr Sinclair. The nature of those claims is not quantified.
On 21 September 2021, Mr Balanian and Launch Partners filed their Commercial List Response in the Balanian Proceedings in which it was accepted that Mr Balanian is liable to repay $250,000 (less amounts for tax paid) to the Sinclair parties and otherwise denied and did not admit the allegations made against them.
On 27 September 2021, the Sinclair parties filed a notice of motion in the Balanian Proceedings seeking summary judgment in respect of part of their claim in the amount of $250,000.
The BBS Proceedings and the Sinclair parties' summary judgment application in the Balanian Proceedings were listed for hearing in early December 2021. The hearing was vacated due to Mr Sinclair's death on 23 November 2021.
On 8 December 2021, Rees J made orders in the Balanian Proceedings appointing Mrs Sinclair as the representative of Mr Sinclair's estate for the purpose of those proceedings pursuant to r 7.10(2)(b) of the Uniform Civil Procedural Rules 2005 (NSW) and listed the BBS and Balanian Proceedings for directions on 7 March 2022. That directions hearing was adjourned until 26 April 2022, presumably to enable the parties to attend the mediation which, by then, they had agreed to participate in.

Events leading to mediation

In late 2021, Mr Wakeford contacted Ms Zabetakis in relation to the disputes between the Sinclair parties and the Defendants, and told her that the parties might be interested in a mediation.
Mr Wakeford had known Mr Sinclair and Mr Ellison for about 25 years. He first met Mrs Sinclair in December 2019 and was introduced to Ms Zabetakis through a mutual friend. He says that, on several occasions prior to Mr Sinclair's death, Mr Sinclair had asked him to do whatever he could to look after Mrs Sinclair.
Mr Wakeford first spoke to Ms Zabetakis about the possibility of mediation and introduced her to Mr Balanian prior to Mr Sinclair's death, likely on 18 November 2021 (based on the contents of a WhatsApp message sent by Mr Wakeford to Ms Zabetakis that refers to the prospect of a discussion between Mr Balanian and Ms Zabetakis that day).
Ms Zabetakis gives evidence, which I accept, that she first spoke to Mr Balanian during a call with Mr Wakeford in November 2021, on which occasion Mr Balanian gave Ms Zabetakis a brief description of the dispute, referred to DCA Capital, described Mr Ellison as his business partner, said that he thought that Mr Sinclair would be interested in mediation and gave her Mr Sinclair's contact details. Ms Zabetakis says she did not speak to Mr Sinclair as he passed away before she could do so.
In December 2021, Ms Zabetakis had further discussions with Mr Wakeford, Mr Balanian and Mr Ellison and they asked her to contact Mrs Sinclair to find out if she would be interested in mediating the dispute.
On 7 December 2021, Ms Zabetakis called Mrs Sinclair. She introduced herself as a mediator and told Mrs Sinclair that Mr Ellison and Mr Balanian had approached her to see if Mrs Sinclair would be interested in considering a possible resolution of the dispute by mediation. Mrs Sinclair did not want to discuss the matter or mediation at that time.
On 24 December 2021, following a request from Mr Wakeford and Mr Balanian, Ms Zabetakis called Mrs Sinclair and left a voice message that apologised for disturbing her close to Christmas, referred to Mr Wakeford having asked her to contact Mrs Sinclair regarding a possible mediation for the purposes of trying to resolve the ongoing business matter with her late husband's business partners, Mr Balanian and Mr Ellison, and gave her contact details if Mrs Sinclair would like to discuss how mediation may assist.
On 18 January 2022, Mrs Sinclair sent a text message to Ms Zabetakis asking to schedule a call to discuss mediation. They exchanged further text messages about arrangements for a call and information that Ms Zabetakis intended to send to Mrs Sinclair. It is not clear whether they spoke again in January or what information was sent to Mrs Sinclair at that time.
On 24 February 2022, Mr Wakeford sent an email to Ms Zabetakis that indicated that he had spoken to Mrs Sinclair who was keen to try and settle the "DCA matter" through a mediation process. He asked Ms Zabetakis to speak with Mrs Sinclair "ASAP", suggested mediation in March 2022, included a draft email for Ms Zabetakis to "add or clean… up" that Mr Wakeford intended to share with Mrs Sinclair and Mr Balanian, asked Ms Zabetakis to send to Mrs Sinclair and himself the email she sent last month and said that he would then manage Mrs Sinclair, Mr Balanian and Mr Ellison from there.
On 2 March 2022, Ms Zabetakis had a call with Mr Wakeford during which he told her that he had spoken to Mrs Sinclair who wanted to discuss mediation with Ms Zabetakis, was keen to resolve the disputes without her lawyer and wanted it done before Easter.
On 3 March 2022, Mr Wakeford prepared a draft email to Mrs Sinclair, which he sent to Ms Zabetakis for review, that asked Mrs Sinclair to prepare and share with Ms Zabetakis the following information: the full names of the parties; details of why the matter went legal and when; whether Mrs Sinclair would be prepared to settle by the end of April; and any other useful facts.
On 9 March 2022, Mrs Sinclair sent a text message to Mr Wakeford stating that she was "extremely nervous" about supplying the information and asked whether they could "start with what the others are prepared to offer?" Based on that text message and the email referred to at [48] below, I infer that Mr Wakeford sent an email to Mrs Sinclair asking for the dispute information, similar to the draft he prepared on 3 March 2022.
That day, Mr Wakeford sent a text message responding to Mrs Sinclair in which he stated that "the other party have sent info direct to [Ms Zabetakis]", who was going to email Mrs Sinclair with more information. Contrary to his assertion in the text message sent to Mrs Sinclair, it appears that Mr Wakeford sent the other parties' dispute information to Ms Zabetakis, which he received from Mr Balanian.
On 9 March 2022, Mr Wakeford sent an email to Ms Zabetakis, which states "received from Ash" and refers to the following: Mr Ellison and Mr Balanian are the defendant parties; DCA Capital is the Defendants' corporate structure and is wholly owned by Mr Balanian and Mr Ellison; they would ideally like to see the matter resolved by "Settlement, Payment to Fiona and her shares returned to [Mr Ellison] and [Mr Balanian]"; the matter went legal when Mr Sinclair filed a claim despite several attempts to resolve it directly, referring to Mr Ellison and Mr Sinclair meeting several times in October and November 2020 but not coming to an agreement; they would be prepared to settle by the end of April 2022; in response to the request for "other useful facts", they wrote that Mr Sinclair had attempted to hack their internal systems, changed passwords, locked Mr Ellison out of his account and deleted crucial files; and they described the core matter as follows: "Corporate Tax bill is still owed to ATO, the Sinclairs are liable for roughly 300k which has not been paid to date. Company Loan to Sinclairs still outstanding in the amount of 250k. They refused to accept this even though they accepted the money. Personal investment of 75k still needs to be returned to Sinclairs. Nothing to do with DCA"
On 10 March 2022, Ms Zabetakis spoke to Mr Balanian and Mr Ellison about the mediation process and how it worked. During that call, Mr Balanian and Mr Ellison discussed what they perceived to be the issues, their relationship with Mr and Mrs Sinclair, the DCA business and how the partnership with Mr Sinclair had fallen apart.
On 17 March 2022, Ms Zabetakis and Mrs Sinclair exchanged text messages that referred to, amongst other things, documents that Ms Zabetakis had sent to Mr Wakeford for Mrs Sinclair that Ms Zabetakis would email directly to Mrs Sinclair together with the mediation services guide, that Ms Zabetakis was still COVID positive and that she would arrange a meeting for next week.
On 18 March 2022, Ms Zabetakis sent Mrs Sinclair her CV, a sample mediation agreement and mediation retainer instructions with a link to her mediation services guide.
On 29 March 2022, Ms Zabetakis had a pre-mediation conference with Mrs Sinclair via Microsoft Teams, which went for about an hour, during which Ms Zabetakis discussed the mediation process with Mrs Sinclair. During that conference, Mrs Sinclair indicated that: she was happy to continue the conference without her solicitor present; her solicitor knew about the mediation but she did not want or need him at the mediation; she wanted to speak to her solicitor before sending documents about the dispute to Ms Zabetakis; she intended to bring Ms Richards to the mediation who she described as a friend, Mr Sinclair's executor and trustee, and as having to be present to sign any documents and approve any agreements on behalf of the estate; she was willing to attend the mediation and explore the issues; she was comfortable for the mediation to be conducted by Ms Zabetakis; she had read the affidavits of Mr Balanian and Mr Ellison and was "appalled" by them, referring to the hacking allegation; she wanted to finish the matter out of Court; if there was any chance of a reasonable settlement then she would try it; her solicitor believed that she could be awarded at least $15 million; $5 million would be her best case scenario although she thought that was probably unrealistic; she had been speaking with her accountant and would speak to her solicitor before the mediation; she wanted the mediation to be done before Easter; and 8 April 2022 was the most suitable date.
On 30 March 2022, Mrs Sinclair sent a text message to Ms Zabetakis advising that she had spoken with her solicitor, Mr Conolly, who would be in touch and who had asked Mrs Sinclair not to send anything until then. Ms Zabetakis sent a text message in response in which she stated that she understood that it was best that Mrs Sinclair's solicitor speaks with her prior to the disclosure of any information and indicated that she would send Mr Conolly the documents about how she runs mediations which she had sent to Mrs Sinclair previously.
On 30 March 2022, Mrs Sinclair sent a text message to Mr Wakeford advising that she had chatted with Ms Zabetakis and Mr Conolly, she had given Mr Wakeford's phone number to Mr Conolly and she thanked him for his support.
On 30 and 31 March 2022, Ms Zabetakis sent emails to each of Mrs Sinclair and Mr Conolly to confirm the date for the mediation.
On 1 April 2022, Ms Zabetakis received a call from Mr Conolly which, according to the records from Ms Zabetakis' file, went for approximately 21 minutes. Ms Zabetakis told Mr Conolly that she had requested details from the participants and had received information from them (mainly verbally) but had not been provided with the pleadings or affidavits which she would like to review. She asked Mr Conolly to provide copies of these documents and he said he would by 4 April.
On 4 April 2022, Ms Zabetakis had a call with Mrs Sinclair during which she confirmed that the mediation would take place on Friday, 8 April 2022 and Mrs Sinclair said that her solicitor would not be present.
Also, on 4 April 2022, Ms Zabetakis had a pre-mediation conference with Mr Balanian and Mr Ellison. During the conference, Mr Balanian and Mr Ellison indicated that they did not think it was necessary for their solicitor to be present unless Mrs Sinclair's solicitor would be present.

8 April 2022: The mediation

The mediation took place at Mr Wakeford's office in North Sydney. It started at around 10.00am and finished between 7.00 and 7.30pm that night. The persons in attendance were Mr Balanian, Mr Ellison, Mrs Sinclair, Ms Richards and Mr Wakeford; the parties' solicitors were not present.
During the mediation, Ms Zabetakis held joint sessions with all the parties and private sessions with Mrs Sinclair and Ms Richards, and with Mr Balanian and Mr Ellison. There were discussions about the core issues identified by the parties and settlement proposals were put forward to Mrs Sinclair and Ms Richards that were the subject of negotiation and agreement.
Prior to the first joint session, Ms Zabetakis had a private session with Mrs Sinclair and Ms Richards during which she asked whether they were happy to proceed with the mediation without lawyers or accountants present, and they confirmed that they were. She says that Mrs Sinclair said to her: "I don't want this going on anymore. If we can resolve it today, I will get my life back. I know what I am doing and I'm very clear about what I want to achieve here. If I don't get what I want I won't settle."
Ms Zabetakis gave evidence that the mediation followed the course of her usual "Mediation Script". A copy of the script, together with Ms Zabetakis' handwritten notes made during the course of the mediation, is in evidence (Exhibit D).
Ms Zabetakis' notes record that, at the outset of the first joint session, the participants' legal representatives were not present, Ms Zabetakis confirmed with all participants that they still wished to proceed and all participants strongly felt and expressed that they were in the "right head space to proceed and wanted to do so without lawyers… they had received advice from lawyers and just wanted to do it without their interference."
During the opening joint session, Ms Zabetakis indicated that neither solicitor had provided her with the documentation she had asked for, which meant that she had not included the correct details on the documents to be signed, including the "Agreement to Mediate" which referred to the participants as "Digital Commodity Assets Pty Ltd trading as DCA Capital" and Mrs Sinclair as the trustee for the estate of Mr Sinclair. Mrs Sinclair signed a revised version of the "Agreement to Mediate" on the morning of the mediation that corrected the parties. The Agreement to Mediate describes the dispute in terms consistent with the Defendants' description that was provided to Ms Zabetakis on 9 March 2022, as described at [48] above.
At the start of the mediation, Ms Richards confirmed that she was present as Mrs Sinclair's friend and as the executor of Mr Sinclair's estate.
The parties then made opening statements, with Mrs Sinclair going first. During her opening statement, Mrs Sinclair's said that she blamed Mr Balanian and Mr Ellison for her husband's death. Ms Zabetakis describes Mrs Sinclair as appearing upset and emotional during the opening session but as calm and composed for the remainder of the day.
After a short break, Ms Zabetakis and the parties discussed what they considered to be the key issues and Ms Zabetakis wrote them down on a whiteboard, approximately, as follows: "(a) John Sinclair's removal from his position as director; (b) the ICO's; (c) the personal and corporate tax debts to the ATO and unpaid taxes; (d) the breakdown in communication between the parties; (e) the reputational harm caused to John Sinclair; (f) the breach of trust: (g) compliance issues: (h) the hacking of the computer and locking John Ellison out; (i) John Sinclair's investment and loan; (j) transfer of shares; and (k) loss of voting rights."
Ms Zabetakis' mediation notes refer to "inter-active triadic discussion between parties during this phase" and that Mrs Sinclair was clear about the issues that she wished to be addressed and recorded on the whiteboard, referring to a "proper loan, ATO tax bill, [Mr Sinclair] being pushed out as director, ICO's and a loan she wanted repayed (sic) & the humiliation she felt that had been brought upon [Mr Sinclair] with their personal accountant by what she referred to as 'the lies they told about [Mr Sinclair] & the gossip they spread'."
Private sessions were then held with Mrs Sinclair and Ms Richards, and with Mr Balanian and Mr Ellison.
During the private session with Mrs Sinclair and Ms Richards, Mrs Sinclair indicated that an amount that would be best would be "around $2.5 million to maybe $3 million but it depends on how willing they are to write to Rodney."
During the private session with Mr Balanian and Mr Ellison, Ms Zabetakis asked them to start considering proposals to put to Mrs Sinclair and Ms Richards during the next phase of the mediation.
During the next joint session, the parties discussed what they wanted and some proposals, and came to agreement on some matters, as follows: 1. Mrs Sinclair proposed that Mr Balanian and Mr Ellison write to "Rodney" to rectify the harm caused to Mr Sinclair's reputation and they agreed; 2. Mr Ellison referred to the company tax debt, of about $670,000, which was mostly the result of tax not being paid on salaries for which all of the directors were personally liable (referring to Mr Sinclair's estate) and that it was something that had to be factored into any settlement amount. He also referred to the company loan owed by Mr Sinclair; 3. Mr Ellison made an offer of $500,000 which Mrs Sinclair rejected for being too low, he indicated that they could give her a higher amount if it was payable over some years and made another offer of $1 million payable over four years; 4. Mrs Sinclair said she wanted $250,000 paid up front, monthly repayments if the remainder was to be paid over four years and a total of $2 million; and 5. Mr Ellison proposed a "half-way figure" of $1.5 million less what Mr Sinclair owed for the company loan and his share of tax debt, which worked out to be around $200,000 after deducting what Mr Balanian owed on his private investment with Mr Sinclair. Mrs Sinclair accepted that offer on the basis that she received a payment of $250,000 up front and the balance was payable by monthly repayments on the 25th day of each month over four years.
Mr Ellison says that after he, Mr Balanian and Mrs Sinclair had reached an agreement, Ms Zabetakis summarised it and asked them whether they were happy to go ahead in response to which they and Ms Richards said yes.
Ms Zabetakis then tried to prepare a document recording the settlement (the Deed) on her iPad but had internet issues so she borrowed Mr Ellison's laptop although she could not access her OneDrive or emails properly. Ms Zabetakis said words to the effect of "maybe this can go over to another day" but the parties indicated that they wanted to continue to sign a document that day. She told the parties that they could take the Deed to their lawyers if they wanted but Mrs Sinclair, Mr Ellison and Mr Balanian said words to the effect of "[n]o, we want to finalise and settle the Deed now".
Ms Zabetakis gives evidence that, after she had typed the Deed, she sat with Mr Balanian and Mr Ellison and reviewed it with them, and she then went through the same exercise with Mrs Sinclair separately. During that process, Ms Zabetakis said words to the effect of "[d]o you understand that term? Does this accurately reflect the agreement you have reached" and each of them said to her words to the effect of "yes".
Ms Zabetakis' handwritten notes on the Mediation Script record that: the internet kept disconnecting; the parties wanted to sign as it was late; the formatting was not great or as she would have liked; Mrs Sinclair became annoyed at Ms Zabetakis for continually suggesting and recommending she call Mr Conolly, stating she "knew what she was doing and understood everything clearly"; when asked whether they would consider a clause that "it is in full and final settlement of the dispute", all parties vehemently agreed that they wanted this; Ms Zabetakis went through the repercussions of the Deed for the parties; and she went through the Deed with each of them.
The Mediation Script notes also record that Ms Zabetakis checked with the parties about them signing the Deed without their solicitors present or involved, she reiterated that she was happy to stand it over while they at least called their solicitors about it to which all parties said "no" and when Ms Zabetakis went through the Deed with Mrs Sinclair to ensure she was happy with it, Mrs Sinclair insisted that she "really was" and that "she didn't expect to get so much".
Ms Richards had left the mediation at around 4.15pm as she had to attend to an elderly client. When she returned, Ms Zabetakis went through the typed Deed with Ms Richards as it had only been in the form of preliminary handwritten notes when she had left. Ms Zabetakis' Mediation Script notes record that Ms Richards indicated that she did not want to make any alterations or amendments, and said words to the effect of "[n]o, if [Mrs Sinclair] is happy with it, I'm more than happy with the terms… I know what all the terms means and understand them… it is a good result for the estate and [Mrs Sinclair]."
Prior to Mr Balanian, Mr Ellison, Mrs Sinclair and Ms Richards signing the Deed, Ms Zabetakis said to them words to the effect of "[t]he deed is full and final in nature. Once you sign it, it will be a binding agreement", in response to which they each said "yes" or that they understood.
During cross-examination, Ms Zabetakis accepted that she did not say to the participants at any point "[d]o you understand you are entering into this Deed personally and on behalf of the companies", although she gave evidence that, before they signed the Deed, she had asked them if they knew their roles as directors and had asked Ms Richards if she knew what her role as an executor and trustee of the estate was.
After the parties signed the Deed, Ms Zabetakis told them to take a copy to their lawyers, that she would also email them with a copy so that they had a digital version and that they needed to finalise the monthly payment schedule for the four year period and some other matters so that they could file it with the Court and have the proceedings dismissed as the parties had agreed.

The Deed

The Deed is seven pages long with an additional cover page that refers to: FJS, BBS and the name and file number of the BBS Proceedings; and Mr and Mrs Sinclair, Mr Balanian and Launch Partners, and the name and file number of the Balanian Proceedings.
The first page states "THIS DEED dated 8th day of April 2022" and identifies the parties, referring to them in two groups: first, as "between" FJS (referred to as the "Plaintiff") and BBS (referred to as the "Defendant"); and second, as "between" Mr and Mrs Sinclair on the one hand and Mr Balanian and Launch Partners on the other.
The recitals (also on the first page) provide as follows: "A. On or abouts 2017 to 2018 the parties entered into a business partnership. B. In or abouts 2020 a dispute arose between the parties in relation to the partnership management and structure. C. The parties contend that certain issues arose regarding directorship, director loans, ICO's, shareholder issues, tax returns and the breakdown in partnership relations. D. In or abouts 2021 the plaintiff commenced proceedings no. 2021/209242 & 2021/00179061 in the Supreme Court of New South Wales (the proceedings). E. The parties wish to settle all disputes between them arising out of the issue of the proceedings (the dispute)."
The section labelled the "OPERATIVE PART" contains 20 clauses. Clauses one to nine provide as follows: "1. This deed is entered into by the parties without admissions of any kind. 2. The defendant will pay to the plaintiff the sum of $1.5 million in full and final settlement of the dispute between them in the following manner: a. The parties agree that this sum is to be reduced to an amount of $1.3 million noting that the defendants agree to carry the burden of any and all outstanding tax liabilities payable by the plaintiff's (sic) to the Australian Tax Office (ATO) and to be paid by the defendant Burns Bay Services Pty Ltd; b. The defendants agree to pay the sum of $1.3 million in accordance with the following payment structure: i. The defendants shall pay the plaintiffs an initial lump sum component (initial payment) of $250,000.00, within 28 days of the date that the orders for consent are filed with the Supreme Court in any and all proceedings; ii. Thereafter, the parties have agreed that the residual component of $1,050,000.00 shall be paid by the defendants to the plaintiffs over the following four (4) year period, no later than the 25th of each month, with such payments to commence a month after the initial payment. iii. The parties have agreed that all payments are to be made in a tax effective manner suitable to all parties. iv. In the event of late payment the parties have agreed to a default interest rate of 8% payable on a per annum basis. 3. The plaintiff agrees to transfer any shares presently in their name to the defendants within 14 days of the date of the orders for consent being entered. 4. The defendants agree to email their accountant, Rodney Forester within 14 days of the date of the orders for consent being entered to clarify and rectify any reputational harm that may have been caused to the reputation of John Sinclair. 5. Each party to pay their own costs. 6. The parties will execute consent orders in the proceedings in the form of schedule 1 to this deed (the consent orders). [The schedule to the Settlement Deed refers to Orders by consent that provide for the proceedings to be dismissed and for each party to pay their own costs]. 7. The defendant undertakes to file the consent orders within 7 days of their execution by the plaintiff and receipt of an executed copy by the defendant's solicitors, Kerr Partners. 8. The defendants hereby releases the plaintiff from all claims, actions, suits, demands, costs, damages and expenses which it may have had but for the execution of this deed by reason of or arising from the dispute. 9. The plaintiffs hereby releases the defendant from all claims, actions, suits, demands, costs, damages and expenses which it may have had but for the execution of this deed by reason of or arising from the dispute."
Clauses 10 and 17 are in the same terms and provide that amendment or variation to "this agreement" is not effective unless it is in writing and signed by all the parties.
Clauses 11 and 15 are also in the same terms and deal with confidentiality.
Clause 12 provides that each party will pay their own costs in relation to the agreement.
Clause 13 relates to counterparts and provides as follows: "This agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party."
Clause 14 concerns interpretation and relevantly provides that: words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and vice versa; references to a party are intended to bind their heirs, executors, administrators, successors and assigns; and obligations under the agreement affecting more than one party bind them jointly and each of them severally.
Clauses 16, 18 and 19 are boilerplate clauses that deal with the entire agreement, dispute resolution and events beyond reasonable control.
The execution page is reproduced below:
At the time the Deed was signed, probate of Mr Sinclair's will had not yet been granted to Ms Richards and Mrs Sinclair had been authorised to represent Mr Sinclair's estate in the Balanian Proceedings.

Events post-mediation

On 11 April 2022, Mrs Sinclair sent an email to Ms Zabetakis which states: "I do have a further question in that what happens in the event that Ash and John decide to close or declare BBS is bankrupt with the payment and our agreement?"
That day, Ms Zabetakis sent an email to Mrs Sinclair in response which relevantly states: "… in the event of bankruptcy of BBS, I would assume that you would be listed as a creditor of BBS and that you may have rights, if your legal representatives at the time can establish and substantiate it, against the directors (if they have breached their directors' duties". However, as Ash is also a plaintiff in his own right, you may be able to bring proceedings against home (sic) personally. Please note that I am providing this information simply as information as I cannot provide you with "legal advice" in my capacity as a mediator. Alan Conolly, your solicitor, is the most appropriate person to provide you with such advice which is why I was suggesting to all parties that they could contact their legal representatives prior to and during the mediation…"
On 22 April 2022, Kerrs sent a letter to Mr Conolly that referred to the mediation that took place between their respective clients without legal representatives present, the parties having reached an agreement to settle the proceedings at the mediation and the Deed which Kerrs had been provided. The letter went on to state: "In circumstances where the Deed appears to be missing some important elements, we are in the process of preparing a more comprehensive version which will of course reflect the terms of settlement reached."
Kerrs also suggested that the upcoming directions hearing, on 26 April 2022, be adjourned for a period of 14 days.
In an email sent that day in response, Mr Conolly agreed that the matter should be adjourned and asked whether Kerrs would write to the Associate putting "this as the agreed position of the parties". Later that day, Kerrs sent to Mr Conolly a draft email to the Associate that referred to the parties having reached agreement to settle the proceedings and asked for the matter to be adjourned for a period of two weeks so that the parties could finalise the Deed.
Mr Conolly did not agree to the draft email being sent to the Associate and suggested that the Associate be advised that the parties were currently having discussions with the object of achieving settlement of the proceedings and that they sought an adjournment of two weeks. In the email he sent to Kerrs, Mr Conolly stated: "We are unhappy with the circumstances in which the mediation occurred, in which we were not involved. We do not at this time concede that the deed that resulted is effective to terminate the proceedings."
Later that day, Kerrs sent an email to Mr Conolly that stated that its clients contend that there was a final binding settlement reached between the parties at the mediation that is reflected in the Deed but Kerrs agreed that the issue should not be agitated before the Court and proposed to simply request a two week adjournment. That was accepted by Mr Conolly and both sets of proceedings were adjourned, ultimately until 23 May 2023.
On 17 May 2022, Mr Conolly sent an email to Kerrs requesting that the proposed deed be forwarded to him as soon as possible.
On 18 May 2022, Kerrs sent an email to Mr Conolly advising that it was still awaiting instructions in respect of aspects of the Deed, including the proposed manner in which payments were to be made to Mrs Sinclair under the Deed and the proposed arrangement with respect to the transfer of the company shares held by Mr Sinclair. The email went on to state: "As you would appreciate, and in circumstances where the parties' legal representatives were not present at the mediation, it is important that the payments under the Deed are structured in a manner that is tax effective to both parties, and that the tax implications relating to the transfer of shares are properly considered. Our clients are currently in discussions with their company accountant as to the most suitable structure for the payments and the transfer of shares. We are instructed that our clients should have those matters finalised shortly and we will be in a position to provide the draft Deed as soon as we have received clarification on those outstanding matters."
On 23 May 2022, the BBS and the Balanian Proceedings were adjourned for a further four weeks to enable Kerrs to prepare a revised deed.
On 25 May 2022, Kerrs sent a proposed draft "Deed of Settlement and Release" (Draft Deed) to Mr Conolly, which was expressed to be on a without prejudice basis. Kerrs' letter states that the draft reflected the settlement terms agreed between the parties at the mediation and noted that Mr Sinclair was included as a party to the Deed in his personal capacity which may need to be amended to instead include his estate and, given the shares in DCA were held by Mr Sinclair in his personal capacity, Kerrs required confirmation of the correct "transferor details" for the purpose of the share transfer forms.
The Draft Deed makes a number of changes to the Deed, such as the following: 1. it includes Mr Ellison, DCA and DCA Capital as parties; 2. it includes a definitions clause, which defines the "Defendants" to mean BBS, Launch Partners and Mr Balanian, the "Parties" to mean the parties to the Draft Deed, the "Plaintiffs" to mean FJS, and Mr and Mrs Sinclair, the "Settlement Sum" to mean the amount of $1.3 million, and "Shares" to mean the shares held in BBS by FJS and in DCA by Mr Sinclair: cl 1.1; 3. it provides that, after the upfront payment of $250,000, the remaining sum of $1,050,000 is to be paid over a four year period by 48 monthly instalments of $21,875: cl 3(a)(ii); 4. it provides for the Defendants to cause payment of the outstanding tax liabilities owing to the ATO in respect of BBS: cl 3(b); 5. it provides that notices of discontinuance, in the form of annexure A to the Draft Deed, will be executed concurrently with exchange of the executed counterparts of the Draft Deed and will be filed with the Court within seven days: cll 4(a), 4(b) and annexure A; 6. it provides that the Plaintiffs will take all necessary steps and execute all necessary documents to transfer the Shares to any person or entity nominated by the Defendants, in the form of annexure B to the Deed, within 14 days of the filing of the notices of discontinuance: cll 5(a), 5(b) and annexure B; 7. it includes all the "Parties" in the release clauses, providing for them to be mutually and unconditionally released and forever discharged from each other from any claim they had or may have against the other party, including any claim arising from, relating to or concerning the BBS and the Balanian Proceedings, that the releases may be pleaded as a bar and a complete defence to any claim and that if a party subsequently makes a released claim, that party indemnifies the other party against all costs and expenses incurred: cll 7(a), 7(b) and 7(c); and 8. on the execution page, it states that it is to be executed as a deed in accordance with s 127(1) of the Corporations Act 2001 (Cth) by FJS, BBS, Launch Partners, DCA and DCA Capital and by Mr Sinclair, Mrs Sinclair, Mr Balanian and Mr Ellison in their personal capacities.
On 1 July 2022, Mr Conolly sent an email to Mr Kerr indicating that he had a number of concerns about the terms of the Draft Deed which he wished to discuss with Mrs Sinclair.
The parties agreed to seek a further adjournment of the proceedings which the Court indicated would be the last adjournment by consent that would be granted.
On 15 July 2022, Kerrs sent a letter to Mr Conolly referring to concerns about an affidavit Mr Conolly swore on 15 July 2022 (a copy of which is not in evidence). The letter records that the affidavit appears to place Mr Conolly in conflict with Mrs Sinclair who had "agreed to settle both sets of proceedings on the terms set out in the Deed of Settlement and Release signed on 8 April 2022", and that the affidavit raises various concerns about the terms of the Draft Deed for the first time.
On 18 July 2022, Mr Conolly sent an email to Mr Kerr attaching an ATO Director Penalty Notice for PAYG Withholding Amounts in relation to BBS dated 12 July 2022 which was addressed to Mrs Sinclair as executor for Mr Sinclair (Penalty Notice). The Penalty Notice identifies that the Commissioner thinks the unpaid amount of BBS's liability for which a director is liable totalled $197,216.
On 29 July 2022, Mr Conolly sent an email to Mr Kerr in which he asserted that the Penalty Notice must lead to the conclusion that "both your clients are insolvent, for this personal debt not to have been paid."
On 1 August 2022, Mr Conolly sent an email to Mr Kerr attaching an amended version of the Draft Deed which he said that Mrs Sinclair, without prejudice, will agree to. That version relevantly amends the clause relating to the payment of the settlement sum so that the whole amount is paid to Mrs Sinclair on exchange. Mr Conolly's email states: "In essence, it simply requires your client to pay all monies due under the original arrangement reached in mediation in cash… on exchange of deeds. This exchange should take place by 3:00pm on Thursday 4 August 2022."
Mr Conolly's email went on to state that if that does not occur, his instructions were to apply to the Court to set aside the notice of motion that had been filed by the Defendants that day which sought to enforce the agreement reached in mediation.
Also on 1 August 2022, Mr Conolly sent a letter to Mr Kerr setting out his concerns. Amongst other things, Mr Conolly asserted that: there seems to be a conspiracy between Mr Balanian, Mr Ellison and Mr Wakeford to achieve a mediation without Mrs Sinclair being represented or advised; the failure by Mr Ellison and Mr Balanian to pay the amount claimed by the ATO in the Penalty Notice supports a conclusion that they are insolvent; the trading records of the trust for the period that the trust was managed by BBS should be produced immediately; it is scandalous the way in which Mr Kerr's clients negotiated the payment to Mrs Sinclair of $250,000 as it should have been paid at the commencement of the proceedings; Ms Zabetakis did not have documentation of the litigation prior to the mediation; Mr Balanian made misrepresentations during the mediation; and it should have been apparent to the mediator and Mr Kerr's clients that Mrs Sinclair was ill-equipped to represent herself at the mediation.
On 4 August 2022, Kerrs sent a response to Mr Conolly stating that it would not respond to the contents of his correspondence other than to state that it did not accept the matters raised in his letter, the Deed entered into by the parties, including Mrs Sinclair, on 8 April 2022 is binding and enforceable and Mr Conolly's proposed alteration to the payment term of the Draft Deed is rejected, noting that the amount and timing of the settlement sum was a key term negotiated at the mediation and agreed by the parties.
As noted above, on 5 August 2022, FJS filed an application seeking a declaration that the Deed is void and unenforceable.
On 15 August 2022, FJS filed Points of Claim.
On 18 August 2022, the Defendants filed Points of Defence.

Legal principles

The legal principles to be applied when assessing whether a binding agreement has been entered into were not in dispute.
In Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 (Masters v Cameron), the High Court stated at [9]-[12]: "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties 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. Or, secondly, it may be a case in which the parties 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 the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common… Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own… The 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…"
A fourth category was referred to by McLelland J (as his Honour then was) in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628, which was affirmed by the Court of Appeal (GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634, per McHugh JA with whom Kirby P, as their Honours then were, and Glass JA agreed) (GR Securities v Baulkham Hills Private Hospital), being one where the parties are content to be bound immediately and exclusively by terms which they have agreed upon while expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.
The four identified categories are not strict nor prescriptive but describe circumstances in which a finally binding contract may or may not come into existence. The decisive issue is whether the parties intended to bind themselves to a contract, which is to be determined objectively having regard to the intention disclosed by the language employed by the parties in light of the surrounding circumstances: Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605; [2015] NSWCA 313 (Pavlovic v Universal Music), per Beazley P (as her Excellency then was) at [64]-[65] and [69], and Bathurst CJ at [15].
In Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd (t/as Masterton Homes (NSW) Pty Ltd) [2020] NSWSC 1049 at [29], Hammerschlag J (as his Honour then was) summarised the additional legal principles that apply to the assessment of whether a binding agreement has been entered, as follows (citations omitted): "(1) Whether an agreement has been entered into is to be objectively assessed. The objective intention of the parties is fact-based, found in all the circumstances, including by drawing inferences from their words and their conduct in their making of the agreement. (2) In ascertaining the intention of the parties, whether from a series of communications or from a single document, regard can be had to the commercial circumstances in which the parties exchanged their communications and to the subject matter of the supposed contract. (3) The Court will not write a contract for parties who have failed to reach agreement. Failure to reach agreement includes where there is obscurity or incompleteness in the agreement. (4) The existence of matters of importance on which the parties have not reached consensus in their informal agreement will render it less likely that they intended immediately to be bound before the execution of a formal document. That the terms have not been fully or well stated is material to whether a contract has been made. The more important the term, the less likely it is that the parties will have left it over for future decision, but there is no legal obstacle which prevents the parties agreeing to be bound now while deferring important matters. (5) Regard may be had to the parties' subsequent communications to assess whether it was in their contemplation that they were not to be bound until all the essential preliminaries had been agreed to or until the formal contract had been drawn up embodying all the matters incidental to the transaction. (6) An agreement may contain an implied term requiring the parties to do all cooperative acts necessary to bring about the contractual result. A duty to cooperate may require parties to execute a formal instrument but does not apply to the negotiation of varied or additional terms."

The Defendants

The Defendants submit that the Deed constitutes a binding agreement, a contract, to settle the BBS and Balanian Proceedings which was entered into by the parties on the day of the mediation.
The Defendants had denied that the Deed was not validly executed and delivered (Points of Defence at [1(b)]) but accepted at the hearing that the Deed was defectively executed and did not take effect as a valid deed.
The Defendants submit that the parties reached agreement on settlement terms at the mediation that were reflected in the Deed and that the objective evidence demonstrates that the parties intended for the Deed to be immediately binding, with the case falling within the first of the Masters v Cameron categories, as one where the parties intended to be bound by the terms of the Deed and were required immediately to perform them while also contemplating entering into a more formal deed of settlement, or alternatively, within the fourth category described in GR Securities Pty Ltd v Baulkham Hills Private Hospital, where the parties intended to be bound but expected to make a further contract in substitution for the Deed which would include additional terms.
They submit that it is clear, whether by signing the Deed or by her conduct, Mrs Sinclair (and Mr Balanian) intended to be personally bound by the agreement constituted by the Deed, as well as in her capacity as a director. Reference was made to the following circumstances: Mrs Sinclair drew no distinction between herself and FJS when talking to Ms Zabetakis; Mrs Sinclair talked about herself having a good deal; and Ms Zabetakis took everyone, including Mrs Sinclair, through the Deed and asked whether they agreed before having them sign it.
The Defendants also submit that it is inconsistent with the objective evidence and makes no commercial sense for Mrs Sinclair to have signed the Deed and bound the company without holding an intention to bind herself personally. They referred, by analogy, to cases involving directors who provided guarantees on behalf of corporations and who signed a document as a director but not in a personal capacity: such as Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241 (Singh v De Castro) at [84]-[91], per Sackville AJA (with whom Macfarlan and Gleeson JJA agreed); Harris v Burrell & Family Pty Ltd (2010) 271 LSJS 326; [2010] SASCFC 12 (Harris v Burrell) at [21]-[30], per Doyle CJ (with whom Bleby and Sulan JJ agreed); and Clark Equipment Credit of Aust Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 (Clark Equipment v Kiyose) at 174, per Giles J (as his Honour then was).
The Defendants submit that, looking at the matter objectively, the parties did not intend for the document to be in the form of a deed (and not an agreement or contract) rather that was just what had been drafted by Ms Zabetakis. They say that Ms Zabetakis took it upon herself to prepare the document in a way that was defective as a deed such that the execution issues were caused by the drafting and not by any intended act of the parties.
The Defendants acknowledge that the Deed contains some poor drafting in the operative clauses. However, they say that there was nothing obviously left out or so uncertain as to suggest that the parties did not intend the Deed to be immediately binding. They also submit that the Sinclair parties have not raised as an issue that the terms of the Deed are sufficiently uncertain such that it is unenforceable and that the Courts are generally reluctant to strike down commercial contracts and will interpret them to make business sense.
The Defendants submit that the correspondence sent by Mr Kerr after the mediation was consistent with a final binding settlement having been reached and the fact that the Draft Deed was sent was "really irrelevant" as it highlighted poor drafting rather than matters about which the parties had not reached agreement. They say there was no indicia of lack of intention to be immediately bound. The Defendants submit that Mr Conolly's counterproposal, which simply required the Defendants to pay all monies due under the Deed in cash, did not suggest that the Deed was a particularly complicated contract to resolve. They also submit that the complaints Mr Conolly made in his letter in response (referred to above at [113]), are not borne out by the evidence and do not assist in determining whether the parties intended to be immediately bound by the agreement reached at the mediation given that neither he nor Mr Kerr were present.
As to Mr Sinclair's estate, the Defendants submit that Ms Richards' acts at the mediation (stating that she was attending on behalf of the estate and signing the Deed as executor under Mr Sinclair's will) establish her as executor de son tort which has the effect of binding Mr Sinclair's estate to the Deed even though Ms Richards had not yet obtained probate. They referred to the principle that "all lawful acts which an executor de son tort doth, are good": Vickers v Bell (1864) 46 ER 924; Thomson v Harding (1853) 2 El & Bl 630; (1853) 118 ER 904; Levitt v Illawarra Seafood Pty Ltd (No 2) (1983) 3 BPR 9137; and J R Martyn and N Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed, 2013, Thomson Reuters) at [7-21], [9.04] and [9.08].
Alternatively, they submit that Mrs Sinclair's role as representative of Mr Sinclair's estate for the Balanian Proceedings would encompass resolving or settling that dispute and that Mr Sinclair's estate would be bound by the Deed as Mrs Sinclair agreed to its terms and to Ms Richards signing on behalf of the estate.

The Sinclair parties

FJS contends that the Deed does not meet the formal requirements of a contract as the agreement contained within the Deed falls within the third category of cases identified in Masters v Cameron as it was not intended by the parties to be binding unless and until a formal contact was executed, and the Deed was not validly executed, witnessed nor delivered as it was not executed by Mrs Sinclair or Mr Balanian in their personal capacities or by the estate of Mr Sinclair (Points of Claim at [1(a)], [1(b)] and [3]-[7]).
FJS had also pleaded a range of other matters, including that the Deed is void and unenforceable as it would be unconscionable for the Defendants to retain the benefit of the Deed, and that the Defendants and Mr Wakeford (as the Defendants' agent) had engaged in misleading and deceptive conduct, that were not pressed at the hearing (Points of Claim at [2], [8], [9] and [11]-[21]).
At the hearing, the Sinclair parties' submissions were framed around two central propositions. First, the agreement reached at the mediation was intended to become binding only upon the execution of a formal document. Second, the objective conduct indicates that the formal document was intended to be in the form of a deed.
In support of their second proposition, the Sinclair parties pointed to the title of the Deed, the execution page, Ms Zabetakis' statements at the mediation referring to "the deed" and the fact that Mr Balanian brought his application and pleaded in his Points of Defence that he said at the mediation that he would be bound by "the deed". Reference was also made to the following as examples of cases where the Court has found there to be no agreement by reason of the failure to execute or deliver a deed: Netglory Pty Ltd v Caratti [2013] WASC 364 (Netglory v Caratti), per Edelman J; 400 George Street (Qld) Pty Ltd v BG International Limited [2012] 2 QD r 302; [2010] QCA 245 (400 George Street v BG International), per Muir and Fraser JJA and Mullins J (as her Honour then was); Pavlovic v Universal Music at [15] per Bathurst CJ, and [64], [66], [114]-[116] per Beazley P (as her Excellency then was); and Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141 (Nurisvan Investment v Anyoption Holdings), per Osborn, Santamaria and Kaye JJA.
The Sinclair parties submit that, as there is no valid deed, there is no binding agreement despite the parties having agreed the terms.
The Sinclair parties accept that the parties were ad idem and had agreed terms of settlement at the mediation. However, they submit that they were also ad idem that the agreement was only to take effect as a formal written document, and the agreement reached was limited by what was contained in that document. The Sinclair parties contend that, properly construed, the counterparts clause (cl 13) is clear that the agreement constituted by the document does not commence until the day upon which the final party executes the document. As was put, the agreement never took effect as a formal written document because all necessary and named parties did not execute it and, until Mrs Sinclair and Mr Balanian sign it personally, which they can do by counterpart, there is no binding agreement.
They submit that the execution page is clear that the parties to the Deed are the three companies, which was confirmed when Ms Zabetakis asked the parties whether they knew their role as directors before they signed. As was put at the hearing, "[t]here's not a skerrick of evidence that any of the [natural] parties intended that by signing as directors they intended to sign as themselves".
They also submit that the Deed, as signed at the mediation by the corporate parties, is better construed as a non-binding heads of agreement or an agreement to finalise an agreement, referring to the following matters: 1. the nature of the claims made in the BBS and Balanian Proceedings, with the value in the BBS Proceedings being not in the winding up order sought but in the subsequent investigation and potential proceedings by the liquidator in respect of potential claims against DCA Capital, Mr Ellison or Mr Balanian for the stripping out of the business, which would have been known to Mr Balanian and Mr Ellison but not to Ms Zabetakis; 2. Mr Wakeford placing himself in the position of "piggy in the middle" in the hope of earning a fee; 3. the parties not providing documents to Ms Zabetakis, the Mediation Agreement naming a non-party (DCA Capital) and the Deed identifying only three parties on the execution page, all of which the Sinclair parties say suggests that the Deed was not one in which the parties were engaging in a complete settlement of a complex dispute; 4. Mrs Sinclair's statement in the joint opening session to the effect that she blamed Mr Ellison and Mr Balanian for killing her husband which, the Sinclair parties submit, objectively suggests that none of the parties could have held any expectation that Mrs Sinclair trusted Mr Balanian or Mr Ellison at the time of execution; 5. the persons present at the mediation did not understand the complexity of the underlying litigation; 6. Ms Zabetakis recognised that there were difficulties with the documents and suggested it be sent to the lawyers; and 7. the Deed, the subsequent communications and Mr Kerr's Draft Deed demonstrate that there were matters of importance to which the parties had not reached a consensus, referring to cll 2(a), 2(b), 3, 8 and 9 and the execution block.
The Sinclair parties submit that the objective inference to be drawn from the circumstances is that Mrs Sinclair attended the mediation to explore whether there was an opportunity to reach a final and binding agreement and not to be immediately bound that day, and that the agreement on terms would only come into force upon the execution of a formal document, which has not yet occurred. They submit that the inference is available that Mrs Sinclair understood she was signing a document in her capacity as a director and, because of the counterparts clause, she had an opportunity to see her lawyer and consider whether to return the counterpart such that the document would not become binding until she signed it personally.
The Sinclair Parties also submit that the Court does not need to deal with any question of executor de son tort. They say that it did not matter what Ms Richards did as Mrs Sinclair had been appointed to represent Mr Sinclair's estate and did not sign the Deed in a personal capacity.
The Sinclair parties submit that Ms Richards was neither a proper nor a necessary party because the only relief sought is that under s 73 of the Civil Procedure Act 2005 (NSW) (with an order that consent orders be entered for the proceedings to be dismissed) (T143.42-144.3), Mrs Sinclair had full authority to do that and Ms Richards had no capacity or authority in that context. Accordingly, they contend that the motion against Ms Richards must be dismissed because she has no interest in the relief sought.

Consideration and determination

The legal principles referred to at [118]-[122] above recognise that the question of whether the Deed has binding effect depends upon the objective intention disclosed by the language employed by the parties read in light of the surrounding circumstances. If the parties intended to be bound, then effect is to be given to that intention.
In this case, the Deed came into existence and was signed at the end of the mediation, the very object of which, as known to all the parties, was to seek to resolve all issues in the BBS and Balanian Proceedings in a single settlement. That context is a material factor suggestive of the parties' intention to enter into a binding and immediate agreement when they signed the Deed: Jingalong Pty Ltd v Todd [2015] NSWCA 7 at [78], per Sackville AJA (which whom Meagher and Leeming JJA agreed).
There is no dispute that the parties reached agreement on the terms of settlement and the agreement on those terms was contained in the Deed. Relevantly, the terms provided for: a payment to Mrs Sinclair of $1.3 million, comprising an upfront payment of $250,000 with the balance payable by monthly instalments over four years; the Defendants to pay the Sinclair parties' tax liabilities in relation to BBS; a transfer of shares to the Defendants; mutual releases from the claims in the BBS and Balanian Proceedings; and consent orders to be filed dismissing the BBS and Balanian Proceedings with no order as to costs.
There is also no dispute that the Deed does not comply with the execution requirements of s 38 of the Conveyancing Act 1919 (NSW) and does not take effect as a valid deed.
Notwithstanding the defects with execution and that some matters in the Deed needed to be clarified following the mediation (such as the monthly payment schedule in relation to the settlement sum), in my view, the evidence of what occurred at the mediation objectively indicates that the parties intended to be bound by the terms of the Deed and signed it at the end of the mediation as an act of recording their binding agreement. Mrs Sinclair, Ms Richards, Mr Balanian and Mr Ellison each signed the Deed having been informed that it was in full and final settlement of the disputes and would be a binding agreement, and verbally indicated their understanding and acceptance of those matters. They also confirmed that they did not want to delay signing the Deed to speak to their solicitors and wanted to finalise it then and there. None of them said anything when they signed to suggest that the Deed was not intended to be immediately binding on each of them in their personal and directorial or representative capacities.
An objective reading of the language employed in the Deed also supports the conclusion that the parties intended that, upon signing the Deed, they would be immediately bound. It uses language suggestive of an agreement that has come into effect. It is dated 8 April 2022 and provides that "This deed is entered into by the parties" and is executed by the parties in accordance with the execution blocks provided. It describes an overall resolution of the disputes between the parties in the BBS and Balanian Proceedings on a full and final basis by means of an agreed payment to the Sinclair parties in return for the Defendants carrying the burden of BBS' outstanding tax liabilities payable by the plaintiffs, a transfer of shares to the Defendants, an agreement to email the accountant to clarify and rectify reputational harm to Mr Sinclair and a dismissal of the proceedings with no order as to costs.
It is true that the language of the Deed lacks clarity and it is somewhat drafted in shorthand. The drafting infelicities are not unsurprising given the Deed was not drafted by the parties' lawyers but by Ms Zabetakis at the end of a mediation that continued beyond the time initially allocated for it and without her having been provided with background documents prior to the mediation.
FJS did not plead or contend at the hearing that the terms of the Deed are so uncertain in essential respects that the parties had not made an enforceable agreement. Rather, it was put that the clauses of the Deed indicated that there existed matters of importance on which the parties had not reached consensus.
As to the matters referred to by the Sinclair parties, the monthly payment schedule and the tax effective manner in which payments were to be made were not specified in the Deed and were left to be clarified by the parties, consistent with what Ms Zabetakis said at the mediation after the Deed was signed. However, the essential payment obligation and default interest rate were agreed and dealt with in cll 2(b)(i), 2(b)(ii) and 2(b)(iv). Clause 2(b)(ii) may not specify the amount of each monthly payment but it would, in my view, be open to the Court to interpret that clause as requiring the payment of equal monthly instalments based on its language and apparent purpose.
In relation to the share transfer clause (cl 3), it does not identify the shares nor from which company the shares are held which are to be transferred to the Defendants. However, the parties must have intended to refer to the shares held by FJS in BBS and by Mr Sinclair in DCA in circumstances where FJS and Mr Sinclair were plaintiff parties to the Deed, the nature of the BBS Proceedings is that FJS is seeking to wind up BBS on just and equitable grounds and the apparent intent of cl 3 is to provide for a separation of the parties' business interests by giving up shares, noting that the evidence before the Court does not indicate that FJS, Mr Sinclair or Mrs Sinclair held any other shares in companies associated with the Defendants. The identity of the transferee of those shares and the mechanics of the transfer are not matters of importance.
The releases in cll 8 and 9 are poorly drafted but, as the Defendants submit, it is clear that the parties intended to achieve something, namely, mutual releases of the claims arising in the BBS and Balanian Proceedings.
The releases, as drafted, may not extend to Mr Ellison, DCA or DCA Capital but that reflects the fact that they were not parties to the BBS and Balanian Proceedings or the Deed. In that context, a reasonable lay person would not, in my view, read the releases as an indication that the parties intended that Mr Ellison, DCA and DCA Capital were to be dealt with later, or that the parties had not reached consensus on that matter. The fact that Mr Ellison, DCA and DCA Capital were included as parties in the Draft Deed and were the subject of releases in that document is not, in my view, inconsistent with the conclusion that the parties intended for the Deed to be binding when it was signed at the mediation, rather, it reflects that the parties might seek to negotiate further and additional terms: Nurisvan Investment v Anyoption Holdings at [107].
Overall, and in circumstances where the Deed was not drafted by the parties' lawyers, the material terms in the Deed are, in my view, sufficiently described to support the conclusion that the parties intended the Deed to be immediately binding when it was signed and that the parties made a sufficiently complete agreement for it to be binding.
I am not persuaded by the Sinclair parties' submissions that the underlying value of the BBS claim, the parties' lack of knowledge about the complexity of the litigation, the fact that documentation relating to the disputes was not provided to the mediator and the counterfactual advanced at the hearing that BBS "would never pay a cent" because its business had been stripped out are factors of weight in this case.
The evidence indicates that the parties were aware that Ms Zabetakis had not been provided with the documents relating to the litigation, as disclosed at the start of the mediation, and willingly participated on that basis without lawyers present.
Mrs Sinclair's knowledge of the issues in the litigation may be inferred from her roles as the sole director of FJS at that time and as a party to the Balanian Proceedings, and by the fact that she had told Ms Zabetakis that she had read the affidavits filed in the proceedings and had discussed her position with her lawyer and accountant prior to the mediation. The evidence also demonstrates that the parties, including Mrs Sinclair, identified various issues in the litigation that were the subject of discussion and negotiation at the mediation. Consistent with her stated objective to the mediator, the settlement provided Mrs Sinclair with an end to the litigation and a monetary sum, which she said she was happy with and was more than she hoped for.
As to the position of BBS, the answer to the hypothetical question posed at the hearing as to who Mrs Sinclair would sue if BBS "didn't pay a cent" is Mr Balanian and Launch Partners as the other "defendant" parties to the Deed. In any event, if it was relevant to the assessment of whether the parties objectively intended to be bound when they signed the Deed, there is no objective evidence that allows the Court to form any real view as to BBS' financial position. I also note that, according to a letter sent from Kerrs to Mr Conolly on 21 September 2022, the Defendants have paid the outstanding tax liabilities of BBS in accordance with their obligations under the Deed.
Notwithstanding my reservations about Mr Wakeford's evidence, the fact that a third party known to the parties and the mediator was involving in arranging and attending the mediation does not, in my view, weigh in favour of the conclusion that the parties did not intend to be bound by the agreement reached and documented at the end of the mediation. Nor does the expression of emotion by Mrs Sinclair during the opening joint session weigh in favour of that conclusion. There was nothing in the evidence before the Court to support the Sinclair parties' submission that "[Ms Zabetakis] and the [D]efendants proceeded… in wilful disregard of Mrs Sinclair's powerfully expressed distress" (Sinclair parties' Written Submissions at [13(c)]).
That leads me to the issue of the execution of the Deed by Mrs Sinclair and Mr Balanian as directors of FJS, BBS and Launch Partners, as expressed on the execution page.
A person may be personally bound by a document they signed even though a qualification attaches to their signature. Consistent with the legal principles referred to above, determining whether a signatory to a contract is personally bound where a qualification to their signature exists requires an objective enquiry as to whether there is such an intention based on the construction of the document as a whole and in light of the surrounding circumstances. That enquiry is not limited to consideration of the signature and its qualification: Harris v Burrell at [16]-[20]; and Singh v De Castro at [86] citing Clark Equipment v Kiyose at 174.
In this case, when the Deed is considered as a whole and in the circumstances in which it was made, I am satisfied that Mrs Sinclair and Mr Balanian intended to be personally bound when they signed the Deed notwithstanding the qualifications attaching to their signatures. In doing so, they understood that they were performing all acts that appeared necessary to allow the Deed to have binding effect.
Mrs Sinclair, Mr Sinclair and Mr Balanian are identified as parties to the Deed in their personal capacities based on their status as natural person parties to the Balanian Proceedings. The Deed recites that, as parties, they wished to settle all disputes between them arising out of the issue of the proceedings (recital E) and relevantly provides that the Deed was entered into by them (cl 1), they would execute consent orders (cl 6) and they had the benefit or burden of terms as either a "plaintiff" party or a "defendant" party.
The execution clauses prepared by Ms Zabetakis did not include separately identifiable signature blocks for Mrs Sinclair, Mr Balanian or the estate of Mr Sinclair to sign in their personal capacities. Mrs Sinclair and Mr Balanian (and Ms Richards on behalf of Mr Sinclair) signed the Deed in accordance with the execution page as drafted by Ms Zabetakis, having understood and agreed to the matters referred to at [146] above, and without the benefit of legal advice about the formal requirements for executing a deed and the need for them to sign separately and identifiably in each of their individual capacities.
In my view, these matters make the failure to identify Mrs Sinclair, Mr Balanian and the estate of Mr Sinclair as separate signatories less significant than usual: Harris v Burrell at [22].
I do not regard the existence of the counterparts clause in the Deed to be of the import that the Sinclair parties' submissions contend.
Counterpart clauses may indicate that the parties contemplate that a deed will be executed in counterpart and then delivered to each other, with the delivery of the counterpart communicating each party's acceptance of the obligations in the deed: Bombardier Inc v Avwest Aircraft Pty Ltd [2020] WASCA 2 (Bombardier v Avwest Aircraft) at [106], per Buss P, Beech and Pritchard JJA. However, in this case, I do not consider that the counterparts clause in the Deed is indicative of that matter.
Considered objectively, the clause was included as a boilerplate provision and was not intended by the parties to have any real work to do given that all the parties to the Deed were in attendance and signed one document at the end of the mediation. There is nothing in the evidence to suggest that Mrs Sinclair or Mr Balanian, when signing as directors, intended not to be bound personally and were waiting to consider whether to sign as individuals and return a counterpart, such that the Deed would only then become binding. To the contrary, in my view, the objective evidence indicates that they intended to be personally bound notwithstanding the qualification on their signatures in the Deed. There is also no apparent logic, and it makes no commercial sense, for Mrs Sinclair to have signed as a director and bound FJS but, at the same time, reserved her right to execute the Deed personally.
I reject the Sinclair parties' submission that the Court should infer that Mrs Sinclair signed the Deed with an understanding that she was doing so in her capacity as a director of FJS only and, having regard to the operation of the counterparts clause, she was waiting to receive legal advice before she decided to execute the Deed personally. As the Defendants submitted, an objective analysis of the Deed and the circumstances in which it was signed leads to the inescapable conclusion that the only reason why the Deed was not signed by Mrs Sinclair, the estate of Mr Sinclair and Mr Balanian separately and identifiably in each of their capacities was because Ms Zabetakis did not include additional execution clauses and not because they did not intend to be bound. In my view, considered objectively, their conduct in signing had a dual effect of binding the company parties and themselves personally.
It follows from my finding that Mrs Sinclair intended to be personally bound when she signed the Deed, that the issue of whether Ms Richards was executor de son tort does not need to be dealt with. As the Sinclair parties accepted at the hearing, if Mrs Sinclair is personally bound by her signature, then Mr Sinclair's estate would also be bound as the objective circumstance known to all parties was that Mrs Sinclair was authorised by the Court order made on 8 December 2022 to act for the estate (T143.18-25).
I do not consider that the objective conduct of the parties indicates that they intended that the Deed, as the document that contained their settlement agreement, would only operate if executed as a valid deed and not as a simple binding contract.
A document described as a deed that does not meet the requirements of validity for a deed because it is defectively executed may constitute a contract between parties and fall within the first category of Masters v Cameron cases as a specifically enforceable executed contract: Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd (2004) 22 ACLC 1390; [2004] NSWSC 861 at [12], [23] and [30], per Young CJ in Eq; and Guang Dong Zhi Gao Australia Pty Ltd v Fortuna Network Pty Ltd [2009] NSWSC 1170 at [137]-[139], per Einstein J. Alternatively, there may be evidence to support the conclusion that the parties intended to be bound by a contract in terms of the deed: Bombardier v Avwest Aircraft at [86].
As observed in N Seddon, Seddon on Deeds (2nd ed, 2022, The Federation Press) at [2.34] (citations omitted): "Given the common use of deeds where the elements of contract are present, such as a deed of settlement, it is not difficult in such cases to find that the document, if defective as a deed, is effective as a contract."
There are conflicting indications contained in the Deed as to whether it was intended that the parties' agreement would only operate and take effect upon execution of a deed. The title of the document, "Deed of Release and Indemnity", the references to "this deed" on page one and in cl 1, and the words "Executed as a Deed" on page seven may be read as indicating that the term "deed" was used advisedly. However, there are also multiple references to "this agreement" throughout the document (see cll 10, 12, 13, 14, 15, 16, 17, 18 and clauses headed "Waiver" and "Events beyond control") and the execution block was clearly not drafted on the basis that the document was a deed, despite the reference to it being executed as such.
Relevantly, there was no need for the parties to use a deed for their settlement. The agreement made at the mediation was to settle genuine disputes and was supported by consideration; the Sinclair parties would give up their claims in exchange for, amongst other things, a payment from the Defendants.
The matters referred to at [150], [165] and [170] are also relevant to this issue and make the references to the term "deed" within the document less significant in this case than in some other cases. The references by the parties and Ms Zabetakis to the "deed" at the mediation seem to me to reflect the description of the document drafted by Ms Zabetakis, rather than evidence that they objectively intended the document they were signing to be in the form of a valid deed.
The circumstances of this case can also be distinguished from those in the cases referred to by the Sinclair parties, given that, in this case, all the parties to the Deed were in attendance at the mediation, each person signed the one document at the end of the mediation and the agreement is supported by consideration.
In Netglory v Caratti at [329]-[337], Edelman J found that the loan agreement and guarantee were not valid deeds due to the absence of attestation but also concluded that each of them was not enforceable due to the absence of any consideration.
In Pavlovic v Universal Music at [134]-[135], Beazley P (as her Excellency then was; with whom Bathurst CJ and Meagher JA agreed) held that a binding contract had not been formed as the evidence strongly pointed to the conclusion that the parties did not intend to be immediately bound until the formal documentation was in place, executed and exchanged in circumstances where neither party had sent an executed copy of the proposed deed to the other at that time.
In 400 George Street v BG International, Muir JA (with whom Fraser JA and Mullins J agreed) concluded that the respondent had clearly intended to execute the agreement for lease and lease as deeds, which was manifest in the words "Executed as a deed" and "By executing this deed", and held that there was no binding and concluded agreement in circumstances where the documents had been prepared by external lawyers and, although executed by the respondent with the intention that they become of contractual force and take effect as deeds when the other parties were bound by them, were never delivered.
As to the subsequent conduct of the parties, Mrs Sinclair refers to "our agreement" in her email to Ms Zabatakis dated 11 April 2022 (set out at [94] above) in a manner which, to my mind, is not inconsistent with an acceptance that the agreement made at the mediation was binding.
The communications sent from Kerrs are also not inconsistent with the parties having reached a binding agreement to settle at the mediation. Kerrs' identification that the Deed appeared to be "missing some important elements" and their subsequent preparation and submission of the Draft Deed reflected, in large part, matters of clarification arising from poor drafting, although I consider that the inclusion of Mr Ellison, DCA and DCA Capital as parties that receive the benefit of the releases and the extension of the releases to include future claims constitute additional terms rather than matters of more precise restatement. Nevertheless, in my view, the submission of the Draft Deed was consistent with the intention of the parties to restate the binding terms in a fuller and more precise document but not to render it different in effect (reflecting the first category outlined in Masters v Cameron), or to substitute the binding Deed with another contract containing, by consent, additional terms (reflecting the fourth category outlined in GR Securities v Baulkham Hills Private Hospital).
It is also significant that the concerns Mr Conolly initially expressed were focused on the circumstances in which the mediation occurred rather than the existence of the agreement itself, and that his subsequent correspondence acknowledged that moneys were "due under the original arrangement reached in mediation" and he sought a variation of the payment terms so that his client would be paid in cash on exchange of the further revised deed.
In conclusion, having considered the facts, the parties' submissions and the legal principles, I am satisfied that the parties intended to be immediately bound to the agreement contained within the Deed when it was signed at the mediation on 8 April 2022 and that they entered into a binding contract on the terms of the Deed, and so find.

Conclusion

For the above reasons, the Defendants have succeeded on their application and should be granted declaratory relief, and FJS's application will be dismissed.
Given the outcome, I also see no reason why the costs of the applications should not follow the event.
I invite the parties to provide agreed short minutes of order to give effect to these reasons within seven days, noting that this decision relates to an agreement to settle two sets of proceedings.
If the parties cannot agree on orders or costs, I will relist the matter for a short hearing or give them an opportunity to file brief written submissions with a view to dealing with the issues on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023

Uniform Civil Procedural Rules 2005(NSW)

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