SIMONSEN -v- SIMONSEN [2025] WASCA 55 | Case summary

Court of Appeal (WA)|2025-04-14|Before: Mitchell JA

At the conclusion of the hearing on 11 April 2025, we ordered that the appeal be dismissed with no order as to costs. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.
On 2 January 2024, the appellant commenced the primary proceedings by originating summons in the General Division of this court. In the primary proceedings, the appellant sought 'Declaratory Relief for the performance of a Deed of Settlement between' the appellant and the respondent. The respondent is the appellant's nephew. The respondent did not participate in the primary proceedings.
The master heard the appellant's claim in the primary proceedings on 30 July 2024. On 18 November 2024, the master dismissed the claim and published written reasons for that decision.[1]
The Deed of Settlement (Deed) produced in evidence before the master was dated 4 May 2006. The Deed was signed by the appellant but was not signed by or on behalf of the respondent. In very general terms, the Deed provided for the compromise of proceedings commenced in the General Division of this court in 2005, in which the appellant sought probate and administration of the estate of his late mother, and other disputes relating to the estates of the appellant's late mother and the respondent's late father. The Deed provided for the respondent to pay the appellant $80,000, after which a consent minute for the discontinuance of the 2005 proceedings with no order as to costs would be filed.
A minute of consent orders dated 20 April 2007, substantially in the form provided for in the Deed and signed by both parties, was filed in the 2005 proceedings. Consent orders were made on 27 April 2007 and extracted on 21 June 2007.
In the primary proceedings, the appellant claimed that the parties entered into the Deed and the respondent had not paid him the $80,000 agreed settlement sum. He sought declarations that the Deed was enforceable, that the respondent had breached the terms of the Deed and that the appellant was entitled to recover the settlement sum of $80,000 from the respondent.

I am not satisfied on the evidence before me that there is an enforceable agreement between the [appellant] and the [respondent], whether by the Deed or otherwise.

For a deed to be validly executed under s 9(1) of the Property Law Act 1969 (WA), whether or not the deed is one affecting property, it:

(a) shall be signed by the party to be bound thereby; and

(b) shall be attested by at least one witness not being a party to the deed but no particular form of words is required for the attestation.

The requirements of s 9(1) are an essential precondition for a document to amount to a deed; non-compliance with those requirements means that the document does not constitute a deed.[3]

The Deed is signed only by the [appellant]. There is no signature or anything to indicate the Deed has been signed by the [respondent]. Consequently, he cannot be bound by it as a deed.[4] Nor is there any evidence to indicate an intention on the [respondent's] part to be legally bound by the alleged agreement.

As referred to in some of the authorities included in the Statement of Claim, there may be cases where an agreement is evidenced by the conduct of the parties or from other communications between them or their lawyers, which evidence an intention to be bound by an agreement even though it has not been signed. However, there is no evidence of any such conduct or any other evidence before the court from which I can make an objective assessment and conclude that the [respondent] intended to be bound by the agreement set out in the Deed.

I cannot be satisfied on the evidence before me of any such intention on the [respondent's] part. Nor am I satisfied there is any basis upon which I may conclude that the [respondent] is in breach of an obligation to pay the Settlement Sum of $80,000 to the [appellant].

There is no evidence to support any concluded agreement between the [appellant] and the [respondent] or of any liability of the [respondent] to pay the [appellant] the Settlement Sum, or any other amount. The [appellant] has not made out his case and there is no basis to grant the relief sought, or any relief. The [appellant's] claim and the proceeding should be, and is dismissed.

The master's reasons also dealt with two other issues. The master found that there was no basis for the court to extend the limitation period for the cause of action which expired long ago.[5] The master also concluded that the primary proceedings were an abuse of process on the basis that they sought to relitigate matters which had been the subject of earlier proceedings between the parties. The master said that, if she had not dismissed the appellant's claim for the reasons set out above, she would have ordered that the proceeding be permanently stayed as an abuse of process.[6]
The appellant now appeals to this court on three grounds. Ground 1 contends that the master erred in finding that the Deed was unenforceable. Ground 2 contends that the master erred in finding that the primary proceedings were an abuse of process. Ground 3 contends that the master erred in finding that there was no basis to extend the limitation period.
It is convenient to focus on ground 1 of the appellant's appeal. Unless the master's finding that the appellant's claim failed on its merits is shown to be wrong, questions of abuse of process and the limitation period cannot provide a basis for this court to disturb the primary order dismissing the appellant's claim.
In support of ground 1, the appellant submits that:

At common law [an] agreement is legally enforceable despite not having been signed by one party. The essential elements in this matter is there was

[A]) An offer from the [respondent] to settle, with an agreement prepared by his solicitor pursuant to the [respondent's] instructions and posted to the [appellant's] address

Acceptance of that offer by the [appellant] by signing the deed and returning it to the solicitor's office

An intention by both parties to be bound by the terms of the offer of settlement

Consideration for the deed of settlement agreement with the payment of $80,000 within a prescribed time frame; and
Certainty of terms of the agreement and which were unconditional.

The appellant referred to the decision of Pembroke J in Streat v Fantastic Holdings Ltd,[7] in which his Honour held an agreement to lease established by the evidence to be contractually binding even though the formal lease document had not been executed by both parties.
For the reasons explained by the master, the Deed did not bind the respondent as a Deed because he had not signed it. As the master also recognised, that did not preclude a finding that the parties reached a binding contractual agreement on the terms contained in the Deed. The problem facing the appellant was that he did not adduce sufficient admissible evidence of conduct by or on behalf of the respondent which warranted a finding on the balance of probabilities that the parties had entered into an agreement in the terms of the Deed.
Apart from documents tendered at the hearing before the master, the only affidavit sworn by the appellant was an affidavit of 23 January 2024 sworn in support of an application for an extension of the limitation period. Paragraph 4 of that affidavit refers to the respondent's lawyer providing the appellant with a letter of finance approval dated 28 June 2006, which was contemplated by par 3 of the Deed. There is also, at par 9 of the affidavit, a conclusory assertion that the appellant and the respondent 'accepted' that they were bound by the Deed. As a matter of form that conclusory statement is inadmissible. In any event its conclusory nature means that it lacks weight. Otherwise the affidavit does not depose to the circumstances in which the Deed came to be prepared and signed by the appellant. Nor does the affidavit depose as to the circumstances in which the consent notice for orders discontinuing the 2005 proceedings was signed and filed.
In short, the matters deposed to in the affidavit of 23 January 2024 do not provide a proper basis for finding, on the balance of probabilities, that the parties entered into a binding contract on terms reflecting those contained in the Deed.
In essence, the appellant's claim failed because he did not adduce admissible evidence to support the court making findings of the facts on which the claim was based. The master's holding to that effect was plainly correct. For that reason, none of the appellant's grounds of appeal provide any reasonably arguable basis for setting aside the master's order dismissing the primary proceedings. We therefore dismissed the appeal on the basis that none of the grounds of appeal have a reasonable prospect of succeeding. As the respondent took no part in the appeal, we ordered that there be no order as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Simonsen v Simonsen [2024] WASC 426 (primary decision).

[3] Dewar v Ollier [2020] WASCA 25 [137], citing Bombardier Inc v AVWest Aircraft Pty Ltd [2020] WASCA 2 [84], which in turn cites Netglory Pty Ltd v Caratti [2013] WASC 364.

[7] Streat v Fantastic Holdings Ltd [2011] NSWSC 1097.

SIMONSEN -v- SIMONSEN [2025] WASCA 55 (14 April 2025)

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