Subsequently, at the same page, he continued:-
163 "A corporation ought not to have a deed attributed to it merely because it executes an agreement under its common seal. The better view appears to be that even a contractual document made under seal is not properly to be regarded as a deed unless the seal has been affixed with the intention that the instrument should operate as a deed: Elphinstone, Introduction to Conveyancing, 7th Edition, pp.52-3; and see for example, Domb v Owler [1924] NZLR 532, at p.537, per Salmond J. Given such an intention, the further intention to complete the execution by delivery as a presently binding deed may be more or less readily inferred according to the circumstances. This view accommodates the decisions on which counsel for the Comptroller relied; and its validity is borne by the judgment of Helsham CJinEq in Hooker Industrial .. ." (My emphasis.)
On appeal, the judgments of the Full Court commencing at p.345, his Honour's decision was upheld. Murphy J, with whom Gobbo and Southwell JJ agreed, said, at p.347:-
"I agree with Tadgell J's conclusion.
In my opinion, the supplemental loan agreement is not a deed, and consequently is not a bond or covenant.
It is not expressed to be a deed, in sharp contrast to the debenture executed on the same day as the original agreement between the same parties as those who executed the supplemental loan agreement.
It is not expressed to be signed sealed and delivered. The solemnity attaching to the making of a deed as distinct from an agreement is not to be ignored. Manton v Parabolic Pty Limited (1985) 2 NSWLR 361, at pp.367-9, per Young J.
The seal of the executing corporations is stated to be affixed "in accordance with the articles of association", again pointing to a requirement, no doubt in the articles, that in order to give a written agreement into which the company enters binding legal efficacy, it must be sealed with the common seal which is to be affixed in the presence of a director and the secretary of the company.
All of these matters would, in my view, support an inference that the agreement was not intended to be a deed, and is in fact not a deed.
…
164 The agreement here was not described as a deed, as it was in the Ansett case, and the surrounding circumstances, such as the contrasting words of the debenture deed, with which the agreement is intimately connected, militate against a conclusion that the agreement was intended as a deed. There are no 'actual words' by the parties sufficient to show that the mere sealing of the agreement by the corporate bodies was alone intended by the parties to amount to execution of the agreement as a deed: see Xenos v Wickham … at p.312, per Blackburn J."
165 In Backstop Nominees Pty Limited v Goscor Pty Limited & Ors [1990] VR 468 Tadgell J again considered whether a document. described as an "agreement" was an agreement under hand or a deed. He considered it was a deed. It was executed by each of the corporate parties under common seal and signed by each of the natural persons beside a sealing clause appropriate to a deed.
At p.470, his Honour said:-
166 "The defendants called no evidence but their counsel made two essential points. The first point, in logical order, was that the instrument was properly to be regarded merely as an agreement and not as a deed and that there was no consideration expressed or proved. I think there is nothing in this point. It is clear law that no particular technical form of words or acts is necessary to render an instrument the deed of the party sealing it: Xenos v Wickham … at p.312, per Blackburn J. The intention expressed or appropriately to be inferred, with which the instrument was executed and thereafter dealt with is of cardinal significance. I should not regard the fact here that the five corporate parties executed the instrument under their common seals as being of particular import by itself. That, alone, is equivocal. I refer without elaboration to what I said at first instance, and to what the Full Court said, in Comptroller of Stamps v Associated Broadcasting Services Limited [1990] VR 335. The added fact, however, that the two natural parties executed the instrument as for a deed at least suggests that the corporations did so. Moreover, it appears that the additional parties who were natural persons attested the affixing of the seal of each of Goscor Pty Ltd and the additional parties who were corporations. In the circumstances I should think it in the highest degree unlikely that all the defendants did not have the same intention as to the effect which the instrument should have upon its execution. To this are to be added the facts that the instrument was executed for the purpose of embodying terms of settlement of litigation, presumably intended to be effective notwithstanding the absence of expressed consideration, that the additional parties intended to bind themselves to guarantee the obligation of Goscor Pty Ltd and, as was again common ground, that counterparts of the instrument were exchanged. In the circumstances the intention of the parties to seal and deliver the instrument as a deed is readily to be inferred and I do so infer. My conclusion, therefore, is that the defendants' first point fails."
167 His Honour's reasoning, if I may say so with respect, is particularly apposite in the present case. Whilst, as I have said, the method of execution by the plaintiff is not determinative or, to use his Honour's words, "of particular import by itself" and "equivocal", there was in that case, as in the present case, the added fact that other parties had executed the instrument "as for a deed". From that his Honour was prepared to infer that the corporations did also. In the present case the execution by the plaintiff and Meredith Properties Pty Limited was "equivocal". Mrs Cottle certainly did not sign the document as a deed. The defendant did.
In Dean and Westham Holdings Pty Limited v Lloyd [1990] 3 WAR 235 the Full Court of the Supreme Court of Western Australia had to consider a document which was in the form of an agreement. Malcolm CJ agreed with the reasons of Ipp J in concluding that the document constituted a deed. The other member of the Court, Wallace J, came to the same conclusion for his own reasons. The document was described as an agreement. The testatum stated "witnesseth" and the testamonium was:-
168 "IN WITNESS WHEREOF the parties hereto have set their hands the day hereinbefore mentioned".
169 The attestation clauses provided, in respect of the personal party, that it was signed by him in the presence of a stated person and, in respect of the corporate party, that its common seal "was hereunto affixed by authority of the Directors in the presence of ..".
Ipp J proceeded by considering s.9(4) of the Western Australia Property Law Act 1969, but it is obvious that his Honour applied the test that the intention of the parties was the matter which determined whether the document could be characterised as a deed. In particular, he noted that in clause 4 it was stated:-
170 "The parties agree that the Purchaser shall as a consequence of this Deed be entitled to demand of the Vendor a transfer … ." (My emphasis.)
At p.252 his Honour recognised that, prima facie, the instrument contained many indicia of an agreement and he considered certain of its provisions "ordinarily would be a very strong indication that an agreement was intended": p.253. However, on closer analysis, he concluded that that was not intended. He said, p.253:-
171 "In my view, an examination of the substance of the instrument reveals that it was intended to record a gift of the property by the deceased to Westham subject to the condition that, in accepting the gift, Westham would pay the necessary stamp duty."
He referred to the absence of consideration and, at p.254, said:-
172 "The most obvious and significant of these factors is the provision in clause 4 that the parties agree 'that the purchaser shall as a consequence of this deed be entitled to demand of the vendor a transfer …'. The phrase 'this deed' is an unequivocal statement by the parties that the document was intended to be a deed. Had the words 'this deed' appeared in the attestation clause, in the form, say, 'this deed signed by the said Eric George Lloyd' there would be little doubt that the instrument would thereby have been expressed to be a deed within the meaning of s.9(4). I consider that there is a great deal to be said for the proposition that it is immaterial whether the words appear in the attestation clause or the body of the instrument itself. At the very least these words strongly indicate that the instrument purports to be a deed." (My emphasis.)
His Honour also considered that the existence of the recital, and of the phrase "these presents", and of the word "witnesseth", were consistent with the intention that the instrument be a deed. He said:-