Plaintiffs v Defendants

PRACTICE AND PROCEDURE - Deed governed by laws of South Australia and Commonwealth - Whether asserted defects in execution of deed provide basis to refuse application for judgment - Whether evidence external to deed establishes intention to be bound - Law of Property Act 1936 (SA) s 41(4) - Ferngrove Pharmaceuticals Pty Ltd v Betterway Healthcare International Group Pty Ltd (2022) 140 SASR 358 applied - Application for judgment allowed.

PRACTICE AND PROCEDURE - Asserted defect in service of writ - Whether prescribed notice attached to writ - Notice and writ handed through window of motor vehicle - Meaning of 'attached' - Service and Execution of Process Act 1992 (Cth) s 16 - Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; (2014) 225 FCR 458, Bosaid v Andry [1963] VicRp 67; [1963] VR 465 followed - Notice 'attached'.

1. By summons dated 31 October 2025, amongst other relief, the plaintiffs seek judgment against the first and second defendants in the amount of $3,343,184.85 together with interest and costs ('October Summons'). The plaintiffs' application for judgment relies on a deed of settlement which, as stated in their submissions in support of the October Summons, includes the following provisions ('deed'):

(a) an obligation to pay an agreed sum of $3,343,184.85 to the Plaintiffs by 30 September 2025 ("Settlement Sum") [clause 3.1];

(b) an acknowledgment that the payment obligation was joint and several [clause 3.2];

(c) an agreement that, in the event of default, the Plaintiffs were entitled to issue a written Notice of Default requiring the Defendants to remedy that default within 14 days [clause 6.1];

(d) in the event of a continuing default, an irrevocable and unconditional acknowledgment of the Plaintiffs' entitlement to judgment for the unpaid amount, plus interests and costs [clause 6.3]; and

(e) an agreement that, for the purpose of obtaining judgment, the Deed itself and an affidavit from the Plaintiffs' solicitors would constitute sufficient evidence of the Defendants' default [clause 6.4].

1. The deed is between the parties to this proceeding, with the exception of the third defendant, Tauri Unit Co Pty Ltd (ACN 650 976 266) ('Tauri Unit Co'), who was not a party to the deed. As Tauri Unit Co has not entered an appearance in the proceeding and did not participate in the hearing on 15 January 2026, I will refer to the first and second defendants as the 'defendants' for convenience.
2. For the avoidance of doubt, it is common ground that:

(a) the defendants signed the deed; and

(b) each of the plaintiffs, of whom there are 13 natural or corporate persons, signed the deed.

1. On 21 August 2025, the defendants' solicitors, CCK Lawyers ('CCK'), sent an email to the plaintiffs' solicitors, Hunt & Hunt Lawyers ('Hunt & Hunt'), attaching a counterpart of the deed executed by the defendants.
2. On 2 September 2025, Hunt & Hunt sent an email to CCK attaching the 'execution pages' of the deed executed by each of the plaintiffs.
3. On 18 September 2025, CCK sent an email to Hunt & Hunt which said:

We appreciate that your clients are seeking some 'comfort' that payment will be made in accordance with the deed.

We have no reason to believe that the terms of the deed will not be fulfilled, but we will let you have some further details when we are able.

1. On 23 September 2025, Hunt & Hunt sent by email to CCK a OneDrive link containing 'fully executed deeds'. Uploaded to the OneDrive folder were ten electronic files, each comprising a complete copy of the deed executed by the first defendant, the second defendant and one of either:

(a) the first and second plaintiffs, Andrew Aldridge and Amanda Aldridge;

(b) the third and fourth plaintiffs, Jason Aldridge and Helen Aldridge;

(c) the fifth plaintiff, Eleftherios Pechlivanidis;

(d) the sixth plaintiff, Jake Ferraro;

(e) the seventh plaintiff, Henry Barry James;

(f) the eighth plaintiff, Dang Nguyen;

(g) the ninth plaintiff, Tim Dunkley;

(h) the tenth plaintiff, Letizia Gentile;

(i) the eleventh and twelfth plaintiffs, Nguyen Trading Co 1 Pty Ltd and Thao Thi Mai Nguyen; or

(j) the thirteenth plaintiff, Matthew Simpson.

1. On 24 September 2025, CCK sent an email to Hunt & Hunt advising, 'I have no reason to think settlement will not occur, am seeking confirmation'. On 25 September 2025 CCK sent a further email to Hunt & Hunt stating, 'everything is in order and is tracking well ... [i]t is intended that settlement will proceed in accordance with the Settlement Deed'.
2. Five days later on 30 September 2025, being the date by which the settlement sum of $3,343,184.85 was due, CCK sent an email to Hunt & Hunt stating that a delay had arisen 'in conducting all necessary arrangements to allow payment to be made'. The email advised 'a number of further days will be needed before Settlement can occur'. The plaintiffs issued a notice of default via email to CCK a day later on 1 October 2025. The default has not been remedied. Payment of the settlement sum has not been made.

1. Four main issues are raised by the defendants in opposition to the application for judgment.
2. The first issue relates to execution of the deed. The defendants submit the plaintiffs have not established the deed was properly executed and, for that reason, the application for judgment against them should be refused. The defendants advanced a number of different arguments based on the common law and South Australian legislation concerning the execution of deeds, including s 41 of the Law of Property Act 1936 (SA) ('LPA'). These issues are dealt with in section E.
3. The second issue relates to the absence of a defence. The defendants submit that summary judgment should not be entered against them in circumstances where they have not had an opportunity to file a defence to the allegations relied upon. In addition to seeking judgment against the defendants in reliance on the deed, the plaintiffs also seek leave to file and serve a draft statement of claim making allegations which relate to it. The proceeding was commenced by writ and general indorsement of claim. No statement of claim has been filed. The defendants submit they have not had any opportunity to file a defence to the allegations in the general indorsement, nor have they had an opportunity to file a defence in relation to the draft statement of claim that pleads a claim for relief based on the deed. This issue is dealt with in section F.
4. The third issue relates to the mode of the plaintiffs' application. The defendants submit that no application has been made for summary judgment against them in accordance with ss 61-64 of the Civil Procedure Act 2010 (Vic) ('CPA') and O 22 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules'), as is the substance of the plaintiffs' application. They submit that without such an application, the plaintiffs have no entitlement to judgment based on the provisions of the deed. This issue is dealt with in section G.
5. The fourth issue relates to service of the writ. The defendants submit service of the writ was defective as the plaintiffs have not established that the requirements of s 16 of the Service and Execution of Process Act 1992 (Cth) ('SEPA') were satisfied. Section 16 requires that a notice be 'attached' to a writ at the time of service. Having filed a conditional appearance on 13 January 2026, the defendants contend they have not submitted to the jurisdiction of the Court. On 14 January 2026 the defendants issued a summons seeking orders pursuant to r 8.08(3) of the Rules that the conditional appearance has effect for all purposes as a conditional appearance until further order of the Court ('January Summons'). This issue is dealt with in section H.
6. For the reasons that follow, I propose to:

(a) order relief in favour of the plaintiffs in accordance with the October Summons; and

(b) refuse the relief sought by the defendants in the January Summons.

1. In support of the October Summons, the plaintiffs rely upon affidavits of Graeme Scott sworn on 30 October 2025 ('First Scott Affidavit') and 27 November 2025 ('Second Scott Affidavit'), and written submissions dated 9 January 2026. Exhibited to the First Scott Affidavit are, inter alia, copies of the deed and the draft statement of claim. The plaintiffs also rely upon written submissions dated 15 January 2026 in opposition to the January Summons.
2. In respect of the October Summons and the January Summons, the defendants rely upon:

(a) affidavits of Paul Costi sworn on 13 January 2026 ('First Costi Affidavit') and 14 January 2026;

(b) an affidavit of service on the first defendant affirmed by a process server on 24 February 2025;

(c) an affidavit of service on the second and third defendants affirmed by a process on 8 January 2026; and

(d) written submissions dated 13 January 2026.

1. Recently, in Doug Pascoe Investments Pty Ltd v Urban Cube Pty Ltd (No 2) ('Doug Pascoe Investments'), Matthews J re-stated the principles to be applied on an application for judgment pursuant to a settlement agreement: [1]
   1. ... In RM Road Services, I stated:

1. The Court has jurisdiction to summarily enforce a settlement agreement by application within an existing proceeding. 2. This summary procedure was described in detail by Smith J in Roberts:

(a) The Court would ordinarily leave a party to proceed by separate bill if the agreement involved matters extraneous to the suit compromised. And it regarded an agreement as falling within this general category: > > > (i) if it dealt with property as to which no question was raised in the suit, or > > > > (ii) if it provided for things to be done which went beyond the ordinary range of what the Court would order in such a suit, or > > > > (iii) if its enforcement involved giving effect to equities of a different nature from those involved in the suit, or > > > > (iv) if there were parties to the agreement who were not parties to the suit. > > > > (b) On the other hand in cases not falling within this first general category the Court would ordinarily enforce the agreement in the suit compromised. In particular this was so if the agreement related solely to the conduct or prosecution of that suit, or to the staying or dismissal thereof, or to the granting of the whole or part of the relief claimed therein or to the doing of that which the suit was brought to enforce. > > > > (c) For the purpose of deciding which of these two general categories a case fell within, the Court did not look merely at the particular obligations sought to be enforced. It looked also at the obligations of the applicant, so far as justice required that the application should not be granted without ensuring that they too would be performed. But it would disregard altogether obligations already fully performed. It may be observed that in order to ensure the performance of obligations by the applicant the Court could make an order conditional upon such performance. > > > > (d) If there was a substantial question to be determined as to what were the terms of the agreement, or as to whether it was valid or specifically enforceable, as for example where a substantial case was put forward of material mistake or of other circumstances such as would afford a defence to a suit for specific performance, a party would ordinarily be left to proceed by separate bill so that the matters raised might be fully investigated. > > > > (e) The fact that the only outstanding obligation under the agreement of compromise was one for the payment of an ascertained sum of money did not preclude the Court from enforcing the agreement in the suit.[2]

2. In dealing with the October Summons I proceed in accordance with the principles as re-stated by Matthews J in Doug Pascoe Investments.

1. Clause 9.5 of the deed provides that the deed 'is governed by the laws of South Australia and the Commonwealth of Australia'.
2. The defendants made detailed submissions raising a number of issues in support of the proposition they are not bound by the deed and, alternatively, that in light of the issues raised, the dispute should proceed to trial. Their written submissions include the following:

Plaintiffs have not established that the Settlement Deed was properly executed

1. The Electronic Communications Act 2000 (SA) does not apply to requirements that a document be witnessed by a person other than the author (s 6(1)(a)(i) of the Electronic Communications Regulations 2017 (SA)).

2. Unlike a contract, execution of a Deed is an all-or-nothing act; there is no such thing as partial execution of a Deed.

3. Without power under the Electronics Communication Act, the common law position is that the signature be written on paper: Bendigo and Adelaide Bank Limited v Russo [2019] NSWSC 661 at [95]. This accords with the plain meaning of s 41 of the SA Act, which requires that a natural person must sign or make a mark "on the deed".

4. A copy of a signature affixed does not constitute an effective signature without evidence that the individual personally authenticated the signature: Bendigo and Adelaide Bank Ltd v DY Logistics Pty Ltd [2018] VSC 558 at [55]. No such evidence has been adduced by the Plaintiffs. Any evidence that was adduced might be challenged at a trial on the merits, a matter that cannot be resolved without the Plaintiffs having adduced such evidence.

5. All that has been provided by the Plaintiffs were the signature pages, without any evidence as to whether they were signed and witnessed as part of the entire Deed (First Scott Affidavit, pages 51 to 62). At least one of the signatures appears to have been electronically affixed, contrary to South Australian requirements.

6. The written submissions of the Plaintiffs do no more than describe this as a "remarkable" position because the Defendants did not provide a wet ink copy of the Deed either. If all parties did not validly execute the Deed that does not ratify the invalid execution.

7. These arguments are not recent inventions but have been raised by the Defendants throughout, and have never been answered with evidence by the Plaintiffs (see Second Scott Affidavit and Costi Affidavit). The Plaintiffs made this application on notice that the Defendants would raise that the Deed did not appear to have been properly executed, and yet chose not to adduce any evidence about the circumstances of its execution.

Whether there is otherwise evidence external to the Settlement Deed evincing an intention to be bound is a triable issue

1. The Plaintiffs seek to rely upon s 41(4) of the Law of Property Act which states that notwithstanding any defect, the execution of a deed will be taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.
2. This evidently requires "evidence external to the deed" to be assessed and weighed by the Court and findings of fact to be made as to whether that evidence establishes that the party did intend to be bound by it.
3. The Plaintiffs have not adduced any evidence on this application as to how the Settlement Deed was executed by each Plaintiff and what other external evidence counts for or against an intention to be bound by the Deed at the time that the Deed was purportedly executed.
4. The Statement of Claim that the Plaintiffs rely upon for judgment (First Scott Affidavit, pages 285 to 289) does not contain any pleadings in relation to:

32.1 the manner in which each Defendant executed the Settlement Deed;

32.2 whether any Defendant intended to be bound by the Settlement Deed, and what facts would establish this.

1. These are matters which, respectfully, ought to be addressed in the context of full pleadings and discovery, and then subject to a trial on the merits.

(a) the deed was executed, signed and delivered by the solicitors for the parties by email without a 'wet ink' copy being requested, required or referred to;

(b) correspondence between the parties demonstrates the defendants treated the deed as binding until the default occurred. The plaintiffs have always treated the deed as binding, as confirmed in letters from Hunt & Hunt to CCK dated 31 October 2025 ('31 October Letter') and 12 November 2025;

(c) applying s 41(4) of the LPA, even if there was defective execution of the deed, evidence external to the deed establishes that the parties intended to be bound by it; and

(d) the absence of a counterparts clause does not undermine the validity of the deed.

1. The deed itself does not expressly provide for separate execution of the deed by the parties named. I do not consider the absence of a counterparts clause to be material in determining whether or not the deed should be treated as binding.
2. As submitted by the plaintiffs and held in Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd,[3] the absence of such a clause does not undermine the validity of a deed.[4]
3. At the time the deed was executed, all parties were legally represented. Objectively, by the actions taken by their legal representatives on their behalf, the parties to the deed intended and conveyed to the opposing parties that they intended to be bound by the exchange of parts that took place.
4. As noted at paragraphs 4, 5 and 7 above, a copy of the deed executed by the defendants was attached to an email sent from CCK to Hunt & Hunt on 21 August 2025. 'Execution pages' of the deed executed by each of the plaintiffs were attached to an email sent from Hunt & Hunt to CCK on 2 September 2025. Then on 23 September 2025, Hunt & Hunt sent by email a OneDrive link containing 'fully executed deeds' to CCK. Those facts show objectively that the parties intended to be bound.
5. Where parties execute separate counterparts with the intention of concluding their bargain and giving effect to an agreement, the law recognises the parties' objective intention to be bound. The law does not have regard to the presence or absence of provisions in a deed providing for execution in counterparts.[5] The execution of the deed in parts without the existence of a counterparts clause does not render the deed defective.

E.2 The submission that natural persons are to sign in 'wet ink'

1. The defendants contended the deed was not properly executed because it was not executed in 'wet ink'. The defendants' submission relied on the common law, s 41(1)(a) of the LPA and, with respect to the signatures of any witnesses, s 9 of the Electronic Communications Act 2000 (SA) ('Electronic Communications Act') and reg 6(1)(a)(i) of the Electronic Communications Regulations 2017 (SA) ('Regulations') (which are to be read together).
2. Section 41(1)(a) of the LPA provides:
   1. Execution and attestation of deeds

(1) The following rules govern the execution of a deed:

(a) a natural person executes a deed by signing, or making a mark, on the deed;

1. Section 9 of the Electronic Communications Act, which is contained within Part 2 Division 2 of that Act, deals with the use of electronic signatures. Relevantly, it provides:

(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if -

(a) a method is used to identify the person and to indicate the person's intention in respect of the information communicated; and

(b) the method used was either -

(i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and

(c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).

1. Regulation 6(1)(a)(i) provides:
   1. Certain requirements and permissions excluded from Part 2 Division 2 of Act

(1) Subject to this regulation, Part 2 Division 2 of the Act does not apply -

(a) to the following requirements or classes of requirements:

(i) a requirement under a law of this jurisdiction that a document be witnessed, attested, verified or authenticated under the signature of a person other than the author of the document;

1. The effect of the regime referred to above is that:

(a) a deed may be signed electronically by a person bound by the deed (referred to in the Regulations as 'the author'); and

(b) if there is a requirement for the signing of a deed to be witnessed, reg 6(1)(a)(i) prohibits the witness' signature from being affixed electronically.

1. Some short observations should be made in relation to the defendants' written submissions concerning the common law relating to the effective execution of deeds.
2. Bendigo and Adelaide Bank Ltd v Russo ('Russo')[6] is not authority for the defendants' contention that without power under the Electronic Communications Act, the common law position is that the signature of a party be written on paper.
3. In Russo, at the pinpoint reference relied upon by the defendants, McCallum J said: 'Had it been necessary to decide this question, I would have concluded that it remains a common law requirement of a deed that it be written on paper'.[7] As is obvious from the foregoing quote, McCallum J did not need to and did not decide that without power under legislation, in this case under the Electronic Communications Act, the common law position is that the signature of a party must be 'written' on paper.
4. According to the leading text, Seddon on Deeds,[8] on which the defendants relied in their written submissions, and which I accept contains an accurate statement of the position, at common law:

The writing could be in any language in handwriting or print. There was no requirement of signature nor that sealing had to be witnessed. Despite the fact that witnessing was not necessary, it became almost universal practice to witness the sealing of deeds.[9]

E.4 Electronic signatures of parties to the deed

1. A requirement for a document to be signed, in this case the deed, as required by s 41(1)(a) of the LPA is satisfied in accordance with the law of South Australia if a person affixes their signature by electronic means and there has been compliance with s 9(1) of the Electronic Communications Act.
2. To the extent that signatures of parties to the deed were electronically affixed, the exchange of the counterparts and subsequent communications between the solicitors for the parties was conduct signifying the consent of the defendants to the deed being so signed, as contemplated by s 9(1)(c).
3. In letters dated 15 October 2025 ('15 October Letter') and 3 November 2025 ('3 November Letter'), which were sent after the defendants provided their executed counterparts of the deed and subsequently promised to pay the settlement sum, CCK asserted on behalf of the defendants that some signatures, including that of Mr Nguyen, had 'clearly been electronically affixed' contrary to South Australian requirements.
4. It is not clear on the face of the document exhibited to the First Scott Affidavit bearing the signature of Mr Nguyen whether that signature asserted by the defendants to have been affixed electronically was so affixed. If it was, to the extent the defendants rely on reg 6(1)(a)(i), the exception in that regulation to the operation of Part 2 Division 2 of the Electronic Communications Act does not apply to the 'author' of the document. Mr Nguyen is the 'author' of the deed executed by him.
5. All parties were represented by solicitors at the time the deed was executed. The executed parts were exchanged between those solicitors in the manner described above. The execution pages were provided by Hunt & Hunt to CCK via email on 2 September 2025. No exception was taken to this approach at the time. The emails enclosing the executed parts constituted a representation by the respective solicitors that the deed was effectively executed by, and binding on, their respective clients.
6. Following execution of the deed in counterparts, CCK represented that settlement would proceed in accordance with the deed and payment was expected to be made by the defendants accordingly. These representations were made by CCK in email correspondence dated 18 September 2025, 24 September 2025, 25 September 2025 and, finally, on 30 September 2025 when they advised that 'further delays will be needed before Settlement can occur'.
7. Notwithstanding the emails referred to above, the defendants failed to pay the settlement sum on or before 30 September 2025, as required by the deed, or any time thereafter. It was only after the event of default that the defendants began to raise technical objections to the manner of execution of the deed. Those technical objections were made too late. Consent to electronic execution of the deed had already been given by the earlier communications from CCK in accordance with s 9(1)(c) of the Electronic Communications Act.
8. Dealing with what I apprehend to be a separate point, the defendants' submission that a copy of an electronic signature does not constitute evidence that the individual 'authenticated' the signature, the authentication requirement is satisfied by the provision of the 'execution pages' of the deed by Hunt & Hunt on 2 September 2025. No additional evidence of 'personal authentication' is required.
9. The decision of Croft J in Bendigo and Adelaide Bank Ltd v DY Logistics Pty Ltd ('DY Logistics'),[10] relied upon by the defendants, concerned whether the affixing of the purported facsimile signatures of the directors and secretary of a company constituted signatures of officers of that company for the purposes of s 127 of the Corporations Act 2001 (Cth), notwithstanding that the officers did not intend to authenticate the document by authorising the affixing of their signatures.[11] The issues that arose on the facts in DY Logistics do not arise in this case.
10. The asserted defect in execution of the deed by the parties is not a defect that comes close to supporting a finding that the defendants have a defence on the merits to the plaintiffs' claim. However, even if there were thought to be merit in one or more of the defendants' 'execution points', the issue is resolved by the application of s 41(4) of the LPA, which is discussed in section E.6 below.

1. In Mostyn v Mostyn ('Mostyn'),[12] a case in which Young J considered the requirement imposed by the relevant New South Wales statute that a deed be witnessed,[13] his Honour said:

It is true to say that at common law attestation was not necessary for the validity of a deed: see, eg, Keith v Pratt (1862) 10 WR 296 and Halsbury's Laws of England, 4th ed, vol 12, par 1331 at 524.[14]

1. In accordance with Mostyn, I proceed on the basis that the common law did not require the deed to be witnessed, in order for the deed to be validly executed.
2. However, as referred to by the defendants in their submissions, and like the New South Wales statute under consideration in Mostyn, s 41(2)(a) of the LPA relevantly provides:

1. Execution and attestation of deeds

...

(2) The execution of a deed must be attested -

(a) where the deed is executed by a natural person - by at least one witness who is not a party to the deed ...

1. As stated previously, reg 6(1)(a)(i) of the Regulations prohibits a witness' signature from being affixed electronically. It is not apparent from the documents exhibited that any of the witnesses affixed their signatures electronically.
2. The First Scott Affidavit exhibits separate copies of the deed signed and witnessed by 'third persons', that is, persons who are witnesses only and not themselves parties to the deed. The only exception is Nguyen Trading Co 1 Pty Ltd. Being a corporation and not a natural person, there is no attestation requirement. Instead the execution block states: 'Executed for and on behalf of [the company] by its duly authorised officers without affixing the Common Seal pursuant to section 127 of the Corporations Act 2001 (Cth)'. The deed is signed by the director and secretary, Ms Thao Thi Mai Nguyen.
3. Contrary to the defendants' submissions, the fact the plaintiffs provided 'execution pages' of the deed on 2 September 2025 does not mean the plaintiffs are required to produce additional evidence as to whether each signature was witnessed as part of the entire deed.
4. Should there have been a deficiency in any respect concerning the witnessing of the deed, including if one or more witnesses affixed their signature electronically (about which there is no evidence), electronic witnessing not being permitted as a result of reg 6(1)(a)(i), any such defect is not effective to call into question the binding nature and effect of the deed when s 41(4) of the LPA is applied to the facts. This is discussed in section E.6 below.

E.6 Section 41(4) of the Law of Property Act 1936 (SA)

1. Section 41(4) of the LPA provides:

41 Execution and attestation of deeds

...

(4) Notwithstanding the defective execution of a deed by or on behalf of a party to the deed, the execution will be taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.

1. As appears from its text, the operation of s 41(4) of the LPA is predicated upon the execution of the deed having been 'defective'. For the reasons earlier discussed, I do not consider execution was 'defective'. The section has no work to do in light of that finding.
2. Assuming that, contrary to my finding, the execution of the deed was defective, I reject the defendants' submission that the plaintiffs have not advanced evidence which constitutes 'evidence external to the deed' so as to establish the intention of the parties to be bound in accordance with s 41(4) of the LPA. Such evidence is provided by the exchange of parts of the executed deed between the solicitors acting for the parties to it. It is also provided by the later communications from CCK confirming their client's intention to perform their payment obligations, to which reference is made earlier in these reasons.
3. The communications from CCK prior to and on 30 September 2025 are entirely inconsistent with the proposition that the defendants did not regard themselves as bound by the deed as executed. If there be any doubt that the plaintiffs also regarded themselves as bound, and there is none, the 31 October Letter from Hunt & Hunt expressly confirms and puts the matter beyond doubt.
4. Assuming the execution of the deed was 'defective', and I have found that it was not, these communications provide persuasive evidence as contemplated by s 41(4) of the LPA that all parties to the deed intended to be, and I find are, bound by the deed.
5. The defendants submit the later in time email communications from CCK to Hunt & Hunt between 18 and 30 September 2025 cannot be relied on to show evidence of an intention to be bound at the time of execution. I reject that submission. The submission is inconsistent with the following passage from the South Australian Court of Appeal in Ferngrove Pharmaceuticals Pty Ltd v Betterway Healthcare International Group Pty Ltd ('Ferngrove'):[15]
   1. Section 41(4) largely reflects the modern common law. At common law extrinsic evidence is admissible to determine the parties' intention when executing an instrument said to be a deed. The parties' subjective intention is relevant and the Court is not restricted to deducing the intention solely from the instrument itself. The self-description as a deed on the one hand, or as a mere agreement on the other, is relevant but not decisive. When the terms 'agreement' and 'deed' are used indiscriminately and interchangeably the Court must construe the instrument to determine whether it was intended to take effect as a deed or not.
   2. Section 41(4) of the LPA is important in this case. The document entitled 'Deed' in this case can be said to suffer from defective execution in that Ferngrove did not affix a seal in accordance with s 41(1)(b). Nonetheless it can properly be inferred that Ferngrove intended to be bound by the Deed because it is signed by its sole director and shareholder. There is no evidence that Ferngrove had a corporate seal, or that, if it did, its failure to fix it to the document resulted from a desire not to be bound. Moreover, the fact that Ferngrove reviewed the clauses of the 'deed' and requested that Betterway amend some of its terms manifests an understanding that it would be bound by the terms of the 'deed' on execution. The sending of the document by express, tracked post, and Ferngrove's request that a facsimile of the executed document be returned to it, also shows that Ferngrove understood, and intended, that it would be bound by the deed on execution. The importance of the 'deed' as a prerequisite to establishing what was expected to be a mutually beneficial trading commercial opportunity under the Supply Agreement also confirms as much.[16]
6. Consistent with Ferngrove, I proceed on the basis that evidence of communications at the time of and after execution of a deed can bear upon issues of intention to be bound for the purposes of s 41(4) of the LPA.
7. The exchange of the executed counterparts constituted a representation by the solicitors that the deed was properly and validly executed by the parties concerned. I do not accept the defendants' submission that the 15 October Letter, sent two weeks after receipt of the default notice, gave rise to a requirement for the plaintiffs to lead detailed evidence about the execution of the individual copies of the deed. That letter was sent on behalf of the defendants by the same solicitors who had exchanged the executed parts and who had given assurances as recently as 30 September 2025 that payment would be made by their clients.
8. At the hearing, the defendants submitted there was no response to their 15 October Letter and 3 November Letter about the intention of the plaintiffs to be bound by the deed. However, the letters disputed the validity of the mode of execution. As submitted by Mr Liu in reply on behalf of the plaintiffs, that is a different issue to the issue of intention to be bound. I accept his submission that the argument advanced by the defendants in this respect conflated two issues. The absence of a response to letters raising issues about the validity of mode of execution does not raise the same issue as the submission as to intention to be bound.
9. I do not accept the defendants' submission that the sending of the 15 October Letter and the 3 November Letter, combined with the absence of evidence as to the circumstances of individual execution, is sufficient to provide an answer to the plaintiffs' application for judgment.
10. Even if this and other issues of a like nature that the defendants either have or might point to in relation to the execution of the deed were properly regarded as otherwise establishing a defence on the merits, s 41(4) of the LPA applies on the facts to preclude reliance on any such asserted defences.
11. Contrary to the defendants' submissions, the matters raised do not constitute an issue in respect of which evidence ought to be led and then subjected to a trial on the merits.
12. The defendants submit that an application such as the present is in essence an application for summary judgment. Accordingly, the defendants submit the Court should apply the same principles, that is, whether the 'defence has no real prospect of success'.
13. I do not agree that the summary judgment test under the CPA is the test to be applied on an application to enforce a deed of settlement following default. No authority was cited by the defendants in support of that submission. It is contrary to the approach adopted in the cases, including the leading decision of Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd ('Roberts').[17] There is no basis to depart from the usual civil standard of proof in such cases. However, even if I am wrong, the result in this case is the same. The 'defences' raised by the defendants, taken individually or together, do not identify a defence that has a 'real prospect' of success.

1. The October Summons seeks leave to file the draft statement of claim exhibited to the First Scott Affidavit. It also seeks an order that the requirement to serve the statement of claim be dispensed with.
2. The defendants are correct to submit that, in a formal sense, they have not had an opportunity to file a defence in response to the draft statement of claim. However, they could have prepared and exhibited a draft defence to an affidavit prior to the hearing. The fact they have not had an opportunity to file a defence in a formal sense is not a reason for refusing to deal with and determine the plaintiffs' application on the merits.
3. As held by the Victorian Court of Appeal in Seachange Management Pty Ltd v Pital Business Pty Ltd,[18] the power to summarily enforce a compromise is discretionary and is 'not to be invoked unless the court is "clearly satisfied that justice can be done"'.[19] Whether justice can be done is a question of degree.[20]
4. The fact orders have not been made for pleadings and therefore the defendants have not had an opportunity to file a defence in a formal sense does not give rise to any injustice. The defendants clearly know and understand the basis of the application for judgment against them. It is conveniently summarised in the draft statement of claim. They have had the opportunity to file evidence in response to the First Scott Affidavit. They have elected not to do so, other than via the affidavits made by their solicitors.
5. As is made plain by s 8 of the CPA, the Court is required to deal with disputes that come before it in a manner consistent with the overarching purpose in s 7. It would be contrary to, and an anathema to the requirement in s 8 to give effect to the overarching purpose, to require that before any application for judgment pursuant to a settlement deed be made, the basis of the claim be the subject of pleadings.
6. As Matthews J said in Re RM Road Services Pty Ltd (in liq) (No 2),[21] the Court has jurisdiction to summarily enforce a settlement agreement application within an existing proceeding.[22] There is no requirement that the basis of the application for enforcement must be the subject of a pleading.
7. It is unnecessary in order to deal with the plaintiffs' substantive application for judgment to make the orders concerning the filing and service of the draft statement of claim. Had it been necessary to do so, I would have granted the plaintiffs leave to file the draft statement of claim. I would have also dispensed with the requirement for service. To make orders to that effect is to ensure the focus is on the real issues in dispute, rather than upon pleading technicalities. Pleadings are intended to enable the opposing party to know the case they have to meet. The defendants are under no illusion in this case. The plaintiffs are seeking judgment based on the defendants' breach of the terms of the deed. To that case, the defendants have no defence.

1. The defendants assert that applications for summary judgment are governed by ss 61-64 of the CPA and O 22 of the Rules. They submit the plaintiffs are not entitled to the relief they seek in the absence of an application for summary judgment in accordance with the CPA.
2. It is correct the provisions of the CPA and the Rules referred to by the defendants are concerned with applications for summary judgment. However, as the decision of Matthews J in Doug Pascoe Investments demonstrates, the Court retains a general power to deal with applications for judgment in circumstances where a party has defaulted on a settlement agreement, in this case, the deed.[23]
3. At least since the decision in Roberts in 1956, the Court has dealt with applications for summary enforcement of settlement agreements without requiring an application for summary judgment in accordance with the relevant Court rules.[24] The CPA did not remove the power of the Court to do so.
4. The absence of an application for summary judgment pursuant to ss 61-64 of the CPA and/or the Rules is not a reason to refuse the relief sought by the plaintiffs.

H Service and the conditional appearance entered by the defendants

1. On 13 January 2026, the defendants filed a notice of conditional appearance. On 14 January 2026, the defendants issued the January Summons seeking an order pursuant to r 8.08 of the Rules that the conditional appearance has effect for all purposes as a conditional appearance until further order of the Court.
2. The defendants submit the plaintiffs' affidavit of service affirmed on 24 February 2025 does not establish compliance with s 16 of the SEPA at the time of service on the first defendant, Mr Cordaro, on 8 February 2025.
3. Section 16 of the SEPA states:

16 Information to be provided

Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.

1. The defendants submit the evidence of the process server does not establish that the Form 1 notice was 'attached' to the writ at the time of service, as required by s 16 of the SEPA. They submit it is for this reason the defendants have not unconditionally appeared in the proceeding and have not otherwise submitted to the jurisdiction of the Court.
2. Responding to this issue, the plaintiffs drew attention to the evidence of the process server that the writ and the Form 1 notice were both served at the same time on Mr Cordaro, the sole director and secretary of the second defendant.
3. In light of this evidence, the highest the defendants' claim disputing the effectiveness of service can be put is that the Form 1 notice was not 'attached' to the writ. As a consideration of the authorities reveals, contrary to the defendants' submission, 'attached' in s 16 of the SEPA does not mean physically attached, for example by a staple to the writ.
4. In support of their submission that 'attached' should be read strictly, the defendants referred to paragraph 16 of MNM Developments Pty Ltd v Gerrard ('MNM Developments') where the Queensland Court of Appeal said:[25]
   1. The context of the requirement set up by s 366 tells against a liberal interpretation of that requirement. Chapter 11 of the Act, in which s 366 occurs, contains a detailed set of technical requirements plainly directed to ensuring a form of consumer protection for purchasers of residential property. One of the objects of the Act, stated in its preamble, is "to protect consumers against particular undesirable practices". That protection extends, in cases like these, to giving a purchaser a right to terminate even for quite technical contraventions, and whether or not the purchaser has suffered any material disadvantage. See, for example, s 366(4)(a), s 366(4)(b) (including the example) and s 367(2).[26]
5. As the paragraph relied on by the defendants makes clear, the decision in MNM Developments relates to an entirely different statutory regime, a regime to protect consumers purchasing residential property. As submitted by Mr Liu, apart from relevance, to contend the decision in MNM Developments supports a construction of the SEPA that compels a strict rather than a broad and facilitative approach to construction is to misread the decision. As submitted by Mr Liu, the submission conflates observations about the mandatory nature of s 16 with the purpose of the SEPA as a whole, which in turn bears on the construction of the word 'attached'.
6. In Curtis v Singtel Optus Pty Ltd ('Curtis'),[27] the Full Court of the Federal Court held that in the context of a bankruptcy notice which was required to be 'attached', the sending of an email which contained two attachments, one being a PDF of the bankruptcy notice and the other being a PDF of the judgment, sufficed as 'attachment' in the relevant sense.[28] In the course of their reasons, the Full Court referred with approval to the primary judge's observation by reference to a judicial dictionary definition that 'attached' does not necessarily mean physically fastened.[29]
7. In Bosaid v Andry ('Bosaid'),[30] Sholl J was concerned with whether a document listing chattels sold was 'attached' to a sale note. The sale note stated that a list of chattels had been received by the purchaser 'this day'. Sholl J held that 'attached' can mean 'accompanying' or 'associated' or 'exchanged at the time of signing hereof'.[31] It was sufficient that the defendants had seen, approved and received the chattels schedule at the same time they signed the sale note.
8. The affidavit of the process server states that he handed a copy of the writ and the Form 1 notice through the passenger seat window of the Audi motor vehicle in which Mr Cordaro was seated. The evidence of the process server that he 'hand[ed] the Documents to Mr Cordaro' is sufficient to prove that the prescribed notice was 'attached' as that word has been interpreted by the Full Court in Curtis and by Scholl J in Bosaid.[32]
9. Having regard to the affidavit of the process server and to the authorities to which I have referred, I reject the proposition that the plaintiffs have failed to prove that the writ was validly served because the Form 1 notice was not 'attached' to the writ.
10. Mr Belperio on behalf of the defendants submitted the evidence of the process server that the two documents were passed through a car window is be contrasted with a version of events set out in a letter from CCK dated 27 February 2025. The difficulty with that submission is that there is no evidence from Mr Cordaro to corroborate or verify the asserted circumstances of service set out in the letter from his solicitors. The only evidence upon which the Court can proceed is the affidavit of the process server.
11. Mr Liu submitted that the relief sought pursuant to r 8.08(3) should not be granted. He described the defendants' contention that the writ had not been properly served as a late and technical objection to service not raised until even after the 15 October Letter and 3 November 2025 Letter in which CCK sought to raise various potential defences.
12. Mr Liu referred to a number of communications on behalf of the defendants, including recitals in the deed itself, which confirmed that the writ had been validly served upon the defendants. He referred to the following:

(a) recitals F and G of the deed, which refer to the existence of the proceeding and the denial of the allegations in the proceeding;

(b) two letters were sent nearly one year before the challenge to service by the same solicitors currently acting on behalf of the defendant, namely:

(i) a letter dated 27 February 2025 from CCK, exhibited to the First Costi Affidavit, which:

• (A) at paragraph 20, referred to 'the effect of service of the legal process'; and
• (B) at paragraph 40, referred to 'the service of the writ constituting the Supreme Court process on Mr Cordaro'; and

(ii) a letter dated 28 March 2025 from CCK, also exhibited to the First Costi Affidavit, which referred to conduct 'following service of the writ'; and

(c) the 15 October Letter and the 3 November Letter, which contained a litany of objections to the plaintiffs' asserted entitlement to enter judgment, but made no mention of any issues concerning or relating to service of the writ.

1. Rule 8.08(3) of the Rules provides that 'a conditional appearance shall have effect for all purposes as an unconditional appearance, unless, on application by the defendant, the Court otherwise orders'. Rule 8.08(3) confers a discretion.
2. The circumstances here dictate that it is not appropriate to exercise the discretion as the defendants contend. There is no question the defendants knew about the proceeding and the writ. That is the purpose of the requirement for service. Accepting the unchallenged and uncontradicted evidence of the process server, noting the technical nature of the objection to service and having regard to the requirement in the CPA to determine the real issues in dispute, I am not prepared to exercise the discretion in r 8.08(3) to order that the conditional appearance shall continue to take effect as a conditional appearance.
3. For the reasons discussed, I do not consider that the issues raised by the defendants concerning service of the writ stand in the way of orders being made for judgment against them in accordance with the October Summons.

1. With respect to the October Summons, there is judgment for the plaintiffs for the sum of $3,343,184.85 plus interest and costs. I will make orders for the payment of interest and costs in accordance with section J.
2. The January Summons is dismissed.

6.3 If the Cordaro Parties fail to comply with the Notice of Default then the Cordaro Parties irrevocably and unconditionally consent to the entry of judgment against them in the Proceeding for:

6.3.1 the Settlement Sum (less any amount which may have been paid);

6.3.2 the Investors' reasonable costs of and associated with the application for and entry of judgment; and

6.3.3 interest on the unpaid amount of the Settlement Sum from the date of default at the rate specified under section 2 of the Penalty Interest Rate Act 1983 (Vic).

1. In accordance with clause 6.3.3, I intend to make an order that the first and second defendants to pay the plaintiffs interest on the amount of $3,343,184.85 from 1 October 2025 to 3 February 2026 at the rate fixed by s 2 of the Penalty Interest Rates Act 1983 (Vic).
2. By 4:00pm on 10 February 2026, the plaintiffs are to calculate the interest payable in accordance with that Act and provide a copy of those calculations to:

(a) my chambers; and

(b) the solicitors for the defendants.

1. In accordance with clause 6.3.2 of the deed, the Second Scott Affidavit contains evidence in support of costs in the sum of $23,477.98. The estimate assumes a one-hour hearing. It does not include any allowance for counsel's fees. It also does not contemplate the January Summons, which was issued some time after the Second Scott Affidavit was filed. By 4:00pm on 10 February 2026, the plaintiffs are to file and serve a short affidavit updating their claim for costs.
2. By 4:00pm on 17 February 2026, the first and second defendants are to file and serve any submissions in opposition to the plaintiffs' quantification of their claim for interest and costs, limited to no more than 4 pages.
3. Unless otherwise advised, the amounts to be paid by the first and second defendants to the plaintiffs for interest and costs will be determined on the papers.

[1] [2025] VSC 809.

[2] Doug Pascoe Investments Pty Ltd v Urban Cube Pty Ltd (No 2) [2025] VSC 809, [93] (citations omitted).

[3] (2002) 56 NSWLR 27; [2002] NSWSC 710.

[4] Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27; [2002] NSWSC 710, [27] (Barrett J).

[5] Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27; [2002] NSWSC 710, [27] (Barrett J) citing Sindel v Georgiou (1984) 154 CLR 661, 667 (Mason, Murphy, Wilson, Brennan and Dawson JJ).

[6] [2019] NSWSC 661.

[7] Bendigo and Adelaide Bank Ltd v Russo [2019] NSWSC 661, [95].

[8] Nicholas Seddon, Seddon on Deeds (Federation Press, 2nd ed, 2022).

[9] Nicholas Seddon, Seddon on Deeds (Federation Press, 2022) 51 (citations omitted).

[10] [2018] VSC 558.

[11] Bendigo and Adelaide Bank Ltd v DY Logistics Pty Ltd [2018] VSC 558, 54.

[12] (1989) 16 NSWLR 635.

[13] Mostyn v Mostyn (1989) 16 NSWLR 635, 638-9.

[14] Mostyn v Mostyn (1989) 16 NSWLR 635, 638.

[15] (2022) 140 SASR 358; [2022] SASCA 31.

[16] Ferngrove Pharmaceuticals Pty Ltd v Betterway Healthcare International Group Pty Ltd (2022) 140 SASR 358; [2022] SASCA 31, [59]-[60] (Kourakis CJ, Doyle and Bleby JJA) (citations omitted).

[17] [1956] VLR 555, 564 (Smith J).

[18] (2009) 23 VR 396; [2009] VSCA 139.

[19] Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396; [2009] VSCA 139, [40] (Maxwell P and Nettle JA) citing Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555, 564 (Smith J).

[20] Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396; [2009] VSCA 139, [40] (Maxwell P and Nettle JA).

[21] [2025] VSC 382.

[22] Re RM Road Services Pty Ltd (in liq) (No 2) [2025] VSC 382, [39].

[23] Doug Pascoe Investments Pty Ltd v Urban Cube Pty Ltd (No 2) [2025] VSC 809, [93] citing Re RM Road Services Pty Ltd (in liq) (No 2) [2025] VSC 382, [39]-[44] (Matthews J).

[24] See, eg, Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd [1956] VLR 555; Re RM Road Services Pty Ltd (in liq) (No 2) [2025] VSC 382; Doug Pascoe Investments Pty Ltd v Urban Cube Pty Ltd (No 2) [2025] VSC 809.

[25] [2005] 2 Qd R 515; [2005] QCA 230.

[26] MNM Developments Pty Ltd v Gerrard [2005] 2 Qd R 515; [2005] QCA 230, [16] (de Jersey CJ).

[27] (2014) 225 FCR 458; [2014] FCAFC 144.

[28] Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458; [2014] FCAFC 144, [47]-[51] (Mansfield, Gleeson and Beach JJ).

[29] Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458; [2014] FCAFC 144, [50] (Mansfield, Gleeson and Beach JJ).

[30] [1963] VicRp 67; [1963] VR 465.

[31] Bosaid v Andry [1963] VicRp 67; [1963] VR 465, 473.

[32] Bosaid v Andry [1963] VicRp 67; [1963] VR 465, 472-3.