Deeds in the digital age – how to ensure your agreement is legally enforceable

19 May 2022

This article was first published by LexisNexis in the Australian Construction Law Bulletin in May 2022.

I. Abstract

Public health concerns, travel restrictions and ever-changing legislative frameworks governing execution and witnessing have made it more challenging for commercial parties and their legal advisors to ensure that an intended agreement is binding and enforceable. From May 2020, key legal requirements for an enforceable agreement have, at various times, been deleted, amended and reinstated, making satisfying these requirements akin to hitting a moving target. The practicalities of executing documents whilst signatories are self-isolating, in quarantine or unable to enter Australia have presented difficulties. These concerns have been most prevalent where the agreement takes the form of a deed which has (until recently) carried with it a number of antiquated legal requirements.

Permanent legislation enacted by the Federal Parliament, taking effect from 23 February 2022, has largely modernised the execution of documents (including deeds), such as by permitting electronic execution. Whilst to ensure that deeds are validly executed commercial parties and their legal advisors will need to be familiar with the requirements introduced by the legislation, it is now easier for deeds to be validly executed than was previously the case. In respect of deeds executed prior to 23 February 2022, there is a greater risk that, unbeknownst to the parties, the deed was not validly executed. This article discusses some steps that parties can take to improve the chances of a deed being legally enforceable, and considers the consequences of a deed “failing”, including whether the intended agreement might be binding, nonetheless.

II. Legislative reforms enshrining electronic execution in Australia

Background to the reforms

The worldwide COVID-19 pandemic had a number of severe impacts on working life in Australia.

In March 2020, Australia’s external borders closed to non-citizens and non-residents, and the entry of returning Australian citizens was also impeded.

Starting from mid-2021, local outbreaks resulted in public health orders in most States and Territories, involving lockdowns, working from home, self-isolation and restrictions on gathering. Certain interstate borders were also closed.

These factors meant that it was significantly more difficult for parties to satisfy common law requirements relating to deeds (such as the requirement that deeds be executed on paper, parchment or vellum1) which, if not complied with, could invalidate the deed.2

At the time of writing, whilst restrictions have eased, self-isolation, travel-related challenges and working from home are still fairly common. Commentators have suggested that out-of-office working is here to stay.3 In this environment, it is usually more convenient to execute deeds electronically.

Temporary measures

Prior to 5 May 2020, a deed written on animal skin would be valid but one executed electronically would not. This is one instance of the legal requirements pertaining to deeds being somewhat antiquated and out-of-step with modern commerce.

From 5 May 2020, measures were introduced at a Federal level in response to the COVID 19 pandemic to permit documents (including deeds) to be executed electronically.4 However, these measures were only brought into effect for a fixed period.5

There was an interregnum between 22 March and 13 August 2021 (inclusive)6 during which no measures at the Federal level permitting electronic execution of deeds were in force. Because of the factors referred to above, many found that they had no choice but to execute deeds electronically nonetheless, in the knowledge that this was likely to be non-compliant with the common-law requirements applicable to deeds.

The legal status of deeds executed electronically during this period is unclear.

Moreover, it is arguable that, for deeds executed electronically during the period from 5 May 2020 to 22 February 2022 under a power of attorney, the execution may have been invalid. This is because the temporary measures did not expressly provide for electronic execution under a power of attorney.

For deeds falling within one of the categories above, there is some authority to suggest that (depending on the circumstances) an estoppel may arise to prevent a party involved in the non-compliance from asserting that what appears on its face to be a deed is in fact not one.7

Permanent Legislation

The Federal Parliament has enacted legislation,8 taking effect on and from 23 February 2022,9 which:

  1. permits the electronic execution of documents (including deeds) on a permanent basis; and
  2. modernises the execution of deeds by disposing of a number of antiquated common law requirements.

We refer to these reforms as the Permanent Legislation,10 and to the execution of ‘deeds’ (although the Permanent Legislation applies to other types of documents as well). The Permanent Legislation is welcome, as it will make the execution of deeds simpler and better adapted to modern commerce.

The Permanent Legislation applies to deeds to be executed by a person on behalf of a company under section 126 or section 127 of the Corporations Act 2001 (Cth) (the Act).

The main changes include the following:

  1. A person may now sign an electronic form of the deed using electronic means, provided the method of signing:
    • identifies the person and indicates the person’s intention in respect of the information recorded in the document;11 and
    • the method was either as reliable as appropriate (in light of all the circumstances) or proven in fact to have fulfilled the requirement in (a) above.12

It is likely that the requirements above would usually be fulfilled:

    • where the execution blocks indicate the execution method (eg,. s 127(1) of the Act) and the capacity in which the signatory signs on behalf of the company (eg, as director or as company secretary); and
    • by using a reliable electronic document signing platform which records the name of the person signing and other metadata (such as the time the electronic signature was affixed).
  1. As a result of (1) above, a deed may be executed under s 126 or s 127(1) of the Act without the use of paper, parchment or vellum.13
  2. Prior to the statutory interventions, it was doubted whether a deed would be valid if there had been ‘split execution’ – i.e, where a company’s two signatories each sign a different counterpart of the deed.14 The Permanent Legislation confirms that split execution is permitted.15
  3. Previously, there were concerns as to whether individuals acting under a power of attorney, or other authorised representatives (not acting under s 127(1) of the Act), could execute deeds electronically.16 The Permanent Legislation remedies this by confirming that an individual acting with the company’s express or implied authority (whether or not that person is appointed by a deed17) can execute a deed electronically under s 126 of the Act on the company’s behalf.18
  4. The Permanent Legislation confirms that, where a deed is executed by a company in accordance with s 126 or s 127(1) of the Act (which includes electronic execution), there is no need:
    • for signatures to be witnessed;19 and
    • for the deed to be ‘delivered’.20

In the following sections, we consider the consequences of a deed “failing” due to the issues referred to above. It is more likely that the applicable legal requirements were not met where the deed in question was executed prior to 23 February 2022, although issues may also arise in respect of deeds executed after that date. We also propose some strategies that commercial parties and their legal advisors may wish to employ to increase the chances of an intended agreement being legally enforceable.

III. A “failed” deed can be enforced as a simple contract – but only if consideration was present

From 5 May 2020 to 23 February 2022, it was somewhat difficult to identify the applicable legal requirements in force at any given time and to ensure that those requirements were satisfied. If it is discovered that a deed was not validly executed, whilst the deed is likely to “fail”, the intended agreement may be enforceable nonetheless, as a simple contract.

For this reason, even where a deed is used, consideration may be relevant. Where a deed is validly executed, it will be binding regardless of whether consideration was provided. However, if it transpires that the deed was not validly executed, or that it contains some other formal defect, the agreement can be enforced as a simple contract – but only if consideration was provided. Consideration is an essential element of a simple contract.

In the decision of Nurisvan Investment Limited v Anyoption Holdings Limited,21 Nurisvan intended to sell certain shares to Anyoption. The parties entered into heads of agreement that were headed “Deed” and used the term “this Deed” throughout. However, the heads of agreement were never executed by Nurisvan. As execution is an essential element of a valid deed, the deed “failed”.

The party seeking to avoid the heads of agreement argued that, as the parties had (objectively) intended the document to be a deed, it could not be enforced as a simple contract.

The Victorian Court of Appeal rejected this argument. It found that the heads of agreement were enforceable as a simple contract.

A key finding made by the Court was that consideration for the heads of agreement had been provided. Anyoption (the purchaser) had agreed to pay a deposit of $10,000 while a more fulsome agreement for the purchase of the shares was prepared. This promise to pay a sum of money was good consideration and, accordingly, there was a binding simple contract.22

In a further example, in the decision of 195 Crown Street Pty Limited v Hoare,23 a company executed a lease by affixing its seal. However, the seal was not witnessed by two directors as the company’s articles of association required. The New South Wales Court of Appeal held that, although the deed failed as a result of this invalid execution, it nonetheless constituted a contract that was binding on the company.24 This was a case where consideration was obviously present, as the landlord was obliged to let the property to the company in exchange for a covenant to pay rent.

Therefore, even where a deed is used, ensuring that consideration has been provided can provide a second line of defence in the event the deed is not executed properly (or at all) or contains a formal defect. In such a case, the “failed” deed may constitute a binding simple contract, but only if consideration is present.

IV. Nominal consideration and the need for payment actually to be made

In some cases, it will be obvious from the terms of the instrument that consideration has been provided. In other cases, to avoid future disputes over whether the instrument is legally binding, it may be prudent for the party receiving the benefit to pay (or to promise to pay) nominal consideration (eg, $1).25 The giving of nominal consideration as a means of ensuring that an agreement is legally binding is a longstanding practice.26

On the current state of the Australian case law, including decisions of the High Court of Australia, where the document contains an acknowledgement of receipt, the consideration must actually have been paid in order for there to be a binding simple contract.27

In the United Kingdom, by contrast, the Privy Council has held that an acknowledgement in a deed that consideration had been paid when in fact it had not been was binding on the parties as a “contractual estoppel”.28 However, this decision has been criticised by certain Australian judges (writing extrajudicially) as overlooking the position in equity, in which recitals as to payment in a deed are not binding.29

On any view, the position is different where, instead of an acknowledgement of receipt of payment, there is a positive obligation to pay. In such a case, the mere promise to pay may constitute good consideration irrespective of whether the payment was actually made.30 This is presumably because, if the payment is not made, it would be open to the promisee to sue for payment.31

For completeness, whilst the principles set out above in relation to failed deeds apply to a wide range of commercial contracts, there are some specific types of transaction for which a deed must be used (and must be valid) in order for the transaction to be effective.32

V. Deeds of variation – can a deed only be varied by a deed?

A common misconception is that a deed can only be varied by a deed. It is settled law that (subject to certain exceptions) a deed can be varied by either a deed or by a simple contract. This means that, if a deed of variation fails due to not being executed properly or some other formal defect, the intended variation can still be legally enforceable as a simple contract (provided that consideration was given for the variation).

The current rules regarding the variation of a deed are a product of the evolution of the English common law that the Australian States and Territories inherited, and of certain statutory interventions in the United Kingdom and in Australia.

At common law, a deed could only be varied by a deed.33

However, the Courts of Equity allowed a deed to be rescinded or varied by a simple contract.34

Judicature legislation enacted first in the United Kingdom in 1873,35 and then in every Australian State and Territory,36 provides that, where there is a variance between the rules of equity and the rules of the common law, the rules of equity prevail.

Since at least 1889,37 the courts have held that a deed can be varied by a simple contract.

The 1929 decision of Berry v Berry38 involves a straightforward application of these rules. Under a deed of separation, a husband agreed to pay his estranged wife an allowance of £18 per month. By a later agreement in writing not executed as a deed, the parties agreed to vary the allowance to £9 per month plus 30% of the husband’s earnings if they exceeded £350 a year. The King’s Bench Division found that the variation was enforceable despite taking the form of a simple contract and, accordingly, the allowance was to be calculated using the varied measure, not the original measure.39

The same rules have been applied by the Australian courts40 so as to permit a deed to be varied by a simple contract.

The special case of a deed which provides that it can only be varied by a deed is dealt with in the next section of this article.

VI. In Australia, agreements can be varied orally despite any provision to the contrary

Purpose of “no oral modification” clauses

Somewhat counterintuitively, on the current state of the law in Australia, the principles set out above – that a deed can be varied by a simple contract – may also apply where the deed provides that it can only be varied by a deed.

The common law ordinarily permits agreements (including deeds) to be varied by formal or informal means, in writing or orally, or by words or conduct.

However, there are indications that commercial parties may consider this flexibility to be a mixed blessing and that it is not always welcome.41 In particular, it is very common for commercial agreements to contain ‘no oral modification’ (NOM) clauses, which (depending on the wording of the clause) may provide that the agreement can only be varied if the variation is:

  • in writing42 or
  • in writing and signed by the parties43 or
  • executed as a deed.44

The purposes of a NOM clause may include:

  • preventing parties from undermining written agreements by informal means;
  • avoiding confusion as to whether there was a variation, and if so, what were the terms of the variation; and
  • prescribing some formality in recording variations to make it easier for companies to police whether, and under what circumstances, their employees may agree to variations.45

The Australian position

The current position in Australia is that NOM clauses are largely ineffective to invalidate oral variations.

It is often suggested that this conclusion is necessitated by notions of party autonomy or freedom of contract. In the seminal decision of Beatty v Guggenheim Exploration Co, Cardozo J of the New York Court of Appeals said: “Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived.”46 This principle has been repeatedly affirmed by the Australian courts,47 including at the intermediate appellate level.48 There are many decisions in which an oral variation has been upheld despite the agreement containing a NOM clause.49

The threshold for sidestepping a NOM clause appears to be fairly low. It appears that a binding variation may arise where the parties agree on the substance of the variation, even though they have not referred to the NOM clause during their variation discussions in any way (for example, by stating that the variation is intended to be effective despite the NOM clause).50

Whilst a NOM clause is legally ineffective, it is still an expression of the parties’ intention that variations should not be agreed lightly and may provide evidence as to whether the parties in fact agreed a variation.51 A party seeking to rely on a putative variation is still required to prove that it was in fact agreed.

For example, in the decision of Rema Tip Top Asia Pacific Pty Limited v Grüterich,52 a contracting party alleged that a discussion in a hotel bar in the evening, in a social setting, constituted a binding variation. In finding that no variation had in fact been agreed, the Supreme Court of New South Wales (Ward CJ in Eq) had regard to a variety of factors, including the existence of a NOM clause as well as the fact that parties had entered into a number of other written agreements, and witnesses’ accounts of the discussions that took place.53

Criticisms of the Australian position

The Australian courts have sought to justify the position outlined above by appealing to party autonomy – the notion that parties should be free to contract as they see fit. This principle has been interpreted as meaning that, where parties are found to have intended to vary their agreement, this variation should be enforced.

However, the Australian position means that, no matter how clearly parties express their intention that their agreement cannot be varied otherwise than in writing, they cannot validly bind themselves in this way. One wonders how this is consistent with the notion of party autonomy.

This criticism has been made by the Supreme Court of the United Kingdom. In the decision of Rock Advertising Ltd v MWB Business Exchange Centres Limited, Lord Sumption JSC (in the majority) said:54

“Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows. Nearly all contracts bind the parties to some course of action, and to that extent restrict their autonomy. The real offence against party autonomy is the suggestion that they cannot bind themselves as to the form of any variation, even if that is what they have agreed.”

In this decision, a majority of the court held that, under English law, NOM clauses are enforceable in accordance with their terms, meaning that putative oral variations are ineffective.55

It is submitted that the court’s reasoning (which does not represent the position in Australia56) is appealing. Party autonomy requires the agreement that the parties have made (that there can be no oral variation) to be respected. This does not prevent the parties from varying their agreement – they could either do so in writing, or could agree in writing to suspend or remove the NOM clause and then agree whatever oral variations they wished.

Evidently, the time is ripe for the High Court of Australia to consider whether the position taken by the Australian intermediate appellate courts – that NOM clauses are legally invalid but evidentially relevant – ought to continue. Until such time as the position is overturned, it will continue to represent the Australian position.

VII. Conclusion

For commercial parties and their legal advisors, the key takeaways from the principles set out above are that:

  1. the Act now allows electronic execution of deeds on a permanent basis and casts aside a number of antiquated common law requirements, which will mean that the execution of deeds is simpler and better adapted to modern commerce;
  2. deeds electronically executed between 22 March and 13 August 2021 (inclusive) may not have been validly executed because there was no legislation in place during this period which provided for electronic execution;
  3. deeds electronically executed under power of attorney between 5 May 2020 to 22 February 2022 may not have been validly executed because the legislation that was in place did not expressly permit this form of electronic execution;
  4. despite paragraphs 2 and 3 above, depending on the circumstances, an estoppel could potentially arise to prevent the parties from asserting that a deed was not validly executed (noting this is an untested point);
  5. even where a deed is used for an original agreement or a variation, it is worthwhile to ensure that consideration is present, to ensure that, if the deed “fails”, the intended agreement can be enforced as a simple contract;
  6. where nominal consideration is envisaged, it is prudent to ensure it is actually provided;
  7. a deed can be varied by a deed or by a simple contract (the latter requiring consideration to have been provided); and
  8. on the current state of the Australian law, NOM clauses are largely ineffective to invalidate oral variations but may have evidentiary value on the question of whether a variation was in fact agreed.

Despite the reforms brought about by the Permanent Legislation, the law of deeds remains complex, and there will certainly be further judicial and legislative developments in this area.

This article was written by Alex Ottaway, Special Counsel and Rachel Cheung, Senior Associate.

Publication Editor: Sheldon Garcia, Partner.

1 i.e. by executing a hard copy deed “in wet ink”.
2 See, eg, Bendigo and Adelaide Bank Limited v Pickard [2019] SASC 123 (Pickard) per Stanley J.
3 See, eg, Robinson, ‘Remote work is here to stay and will increase into 2023, experts say’, Forbes, 1 February 2022; Ekstein, ‘Forget working from home – working from anywhere is about to take off’, Australian Financial Review, 8 February 2022 off-20220208-p59uok.
4 Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth), Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 (Cth) and Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth).
5 For example, pursuant to section 1679F of the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth), the part of the Act which permitted the electronic execution of documents (including deeds) was automatically to cease effect on 1 April 2022.
6 As one of the legislative instruments, the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth), automatically expired on 14 August 2021 without any replacement having been enacted: Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (Cth), section 2(1) table item 2.
7 In the decision of Shah v Shah [2002] QB 35, a statutory requirement that a deed made by an individual be signed in the presence of a witness was not complied with. The witness was not present at the time of signing and added his signature at a later time. The result was a deed which appeared, to someone who was unaware of this history, to have been validly witnessed and attested. The individual who did not comply with the requirement was estopped from later asserting that the deed was invalid, on the basis that ‘The delivery of the document constituted an unambiguous representation of fact that it was a deed’: [2002] QB 35 at 41 per Pill LJ (Tuckey LJ and Sir Christopher Slade agreeing).
8 Corporations Amendment (Meetings and Documents) Act 2022 (Cth), Schedule 1.
9 Above, at section 2(1), table item 2.
10 As distinct from the earlier measures which were temporary. We are not suggesting that the rules introduced by the reforms will not be amended or supplemented in the future.
11 New s 110A(2)(a) of the Corporations Act 2001 (Cth).
12 New s 110A(2)(b) of the Act, above
13 New ss 126(6)(b) and 127(3A)(b) of the Act and notes to those new sections.
14 Above n 2, per Stanley J.
15 New s 110A(4) of the Act, above n11
16 Because the temporary measures did not make adequate provision for electronic execution by individuals acting under a power of attorney or by other authorised representatives. Provisions such as section 14G of the Electronic Transactions Act 2000 (NSW) arguably only permitted witnessing, not execution, to be done electronically.
17 There were some situations in which it was necessary for an agent to be appointed by a deed in order to execute a deed validly on behalf of another: Harrison v Jackson [1797] EngR 415, cited in MYT Engineering v Mulcon Pty Ltd (1999) 195 CLR 636 at 643 per Gleeson CJ, Gaudron, Gummow and Hayne JJ (MYT Engineering)
18 Section 126(1), (4) and (6) of the Act, as amended or inserted by the Corporations Amendment Act 2022 (Cth), above n 8, Sch 1, cl 4.
19 New ss 126(6)(a) and 127(3A)(a) of the Act.
20 New ss 126(7) and 127(3B) of the Act.
21 Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141; BC201704616.
22 Anyoption had in fact paid the deposit. If, hypothetically it had not paid the deposit, then, on one view, there would still be a binding simple contract, because a promise to do something is good consideration whether or not the promise is fulfilled. This issue is discussed further below.
23 195 Crown Street Pty Limited v Hoare [1969] 1 NSWR 193 [1969] 1 NSWR 193.
24 Above at 202 per Asprey JA (Walsh JA agreeing), cited with approval by a majority of the High Court of Australia (Gleeson CJ, Gaudron, Gummow and Hayne JJ) in MYT Engineering, above n 17, at 648–649.
25 The following State and Territory legislation makes provision with respect to acknowledgements of receipt contained within a deed: Australian Capital Territory: Civil Law (Property) Act 2006 (ACT), s 220; New South Wales: Conveyancing Act 1919 (NSW), s 39; Northern Territory: Law of Property Act 2000 (NT), s 53; Queensland: Property Law Act 1974 (Qld), s 51; Tasmania: Conveyancing and Law of Property Act 1884 (Tas), s 67; Victoria: Property Law Act 1958 (Vic), s 67; Western Australia: Property Law Act 1969 (WA), s 67.
26 For example, each year since 1816, the Masonic Lodge in Bermuda has presented a single peppercorn to the Governor of Bermuda as rent for the Lodge. In the decision of Chappell & Co Limited v Nestlé Co Limited [1960] AC 87 at 114, Lord Harrow of Somerville emphasised that nominal consideration is sufficient in law to ensure a binding agreement, as follows: ‘A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn’.
27 See the following decisions of the High Court of Australia cited in Leeming, ‘Receipts clauses and ‘contractual estoppel’ revisited’ (2018) 134 LQR 171–176: (i) Petersen v Moloney (1951) 84 CLR 91 at 100 per Dixon, Fullagar and Kitto JJ, citing Burchell v Thompson [1920] 2 KB 80 at 86 per Lush J; (ii) Barba v Gas & Fuel Corporation of Victoria (1976) 136 CLR 120 at 131; and (iii) Fischer v Nemeske Pty Limited (2016) 257 CLR 615; 330 ALR 1; [2016] HCA 11; BC201602215at [87] and [193].
28 Prime Sight Limited v Lavarello [2014] AC 436 per Lord Toulson for the Privy Council.
29 See the following commentary cited by the Privy Council in the decision of Chen v Ng [2017] UKPC 27 at [29]: (i) KR Handley, ‘Reinventing estoppel in the Privy Council’ (2014) 130 LQR 370 at 371; (ii) KR Handley, Estoppel by Conduct and Representation (2nd ed) (2016) at [5-021]; and (iii) R Meagher, W Gummow and J Lehane’s, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies at [17-015]. See also M Leeming, above n 27.
30 In the decision of Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Limited [1943] AC 32 at 48, Viscount Simon LC said, ‘In English law, an enforceable contract may be formed by an exchange of a promise for a promise… and thus, in the law relating to the formation of contract, the promise to do a thing may often be the consideration’. His Lordship’s dicta was cited with approval by Callinan J of the High Court of Australia in the decision of Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516 at 587.
31 Chen v Ng (British Virgin islands), above n 29, at [36] and [45]–[46] per Lord Neuberger and Lord Mance for the Privy Council.
32 For example, s 23B of the Conveyancing Act 1919 (NSW) states that “No assurance of land shall be valid to pass an interest at law unless made by deed”.
33 West v Blakeway (1841) 10 LJ (CP) 173 at 177 per Bosanquet J, cited in Berry v Berry [1929] 2 KB 316 (Berry v Berry) at 319 per Swift J: ‘no rule of law is better established than that a covenant cannot be varied or dispensed with, but by some contract of equal value; and this covenant, therefore, cannot be varied but by some instrument under seal’.
34 Nash v Armstrong (1861) 10 CB (NS) 259, cited in Berry, above, at 319 per Swift J.
35 Supreme Court of Judicature Act 1873 (36 & 37 Vict., C.66), s 25(11).
36 Australian Capital Territory: Supreme Court Act 1933 (ACT), s 33; New South Wales: Law Reform (Law and Equity) Act 1972 (NSW), s 5; Northern Territory: Supreme Court Act 1979 (NT), s 68; Queensland: Civil Proceedings Act 2011 (Qld), s 7(3); South Australia: Supreme Court Act 1935 (SA), s 28; Tasmania: Supreme Court Civil Procedure Act 1932 (Tas), s 11(10); Victoria: Supreme Court Act 1986 (Vic), s 29(1); Western Australia: Supreme Court Act 1925 (WA), s 25(12).
37 Steeds v Steeds (1889) 22 QBD 537.
38 Berry, above n 33.
39 Berry, above n 33at 321 per Swift J (Acton J agreeing).
40 See eg,Sara Stockham Pty Ltd v WLD Practice Holdings Pty Ltd [2021] NSWCA 51 (Sara Stockham) at [15] per Leeming JA (Gleeson JA and Emmett AJA agreeing). In the decision of Elias v Forsyth [2004] QSC 338 at [48], Chesterman J (as his Honour then was) held that “there is no impediment to an agreement appearing in a deed being varied by parol agreement”‘ provided that there is consideration for the variation.
41 As Lord Sumption JSC (with Baroness Hale of Richmond PSC, Lord Wilson and Lord Lloyd JJSC agreeing) pointed out in the decision of Rock Advertising Limited v MWB Business Exchange Centres Limited [2019] AC 119 at [11].
42 See, eg., Re Rapsey, Australasian Mortgage Finance Limited (admins appointed) [2021] FCA 189 at [15].
43 See, eg, GEC Marconi Systems Pty Limited v BHP Information Technology Pty Limited [2003] 128 FCR 1; [2003] FCA 50; BC200300200 at [46].
44 See, e.g., Hawcroft General Trading Co Pty Limited v Hawcroft [2017] NSWCA 91; BC201703384 at [35].
45 Above n 41, at 127 per Lord Sumption JSC (with Baroness Hale of Richmond PSC, Lord Wilson and Lord Lloyd JJSC agreeing).
46 Beatty v Guggenheim Exploration Co (1919) 225 NY 380 at 387–388.
47 See, eg., above n 43. at [219] per Finn J; above n 42 at [44] per Nicholas J; Rema Tip Top Asia Pacific Pty Limited v Grüterich [2019] NSWSC 1594 at [305]–[306] per Ward CJ in Eq (Grüterich)
48 See, eg., Bundanoon Sandstone Pty Limited v Cenric Group Pty Limited [2019] 373 ALR 591; [2019] NSWCA 87[ BCA201903349 at [122] per Gleeson JA (Meagher and McCallum JJA agreeing) (Bundanoon); above n 44, at [35] per Leeming JA (Basten JA agreeing); Sara Stockham, above n 40 at [15] per Leeming JA (Gleeson JA and Emmett AJA agreeing).
49 Bundanoon, above, at [121]–[129] per Gleeson JA (Meagher and McCallum JJA agreeing); above n 44 at [44] per Leeming JA (Basten JA agreeing); above n 42 at [44]–[45] per Nicholas J; Sara Stockham, above n 40, at [15] per Leeming JA (Gleeson JA and Emmett AJA agreeing).
50 In each of the decisions above, the court found that the variation was effective despite there being no suggestion in the decisions that the parties expressly mentioned the NOM clause in their variation discussions.
51 Above n 44, at [221] per Finn J.
52 Grüterich, above n 47.
53 Grüterich, above n 47, at [311]–[335] per Ward CJ in Eq.
54 Above n 41, at 127 per Lord Sumption JSC (Baroness Hale of Richmond PSC, Lord Wilson and Lord Lloyd JJSC agreeing).
55 Save in exceptional cases where something other than the putative variation, such as inducement or encouragement to act in accordance with the putative variation, gives rise to a binding estoppel: above n 41, at 130–131 per Lord Sumption JSC (Baroness Hale of Richmond PSC, Lord Wilson and Lord Lloyd JJSC agreeing).
56 Bundanoon, above n 48, at [122] per Gleeson JA (Meagher JA and McCallum JA agreeing); Sara Stockham, above n 40 at [15] per Leeming JA (Gleeson JA and Emmett AJA agreeing).

Alex Ottaway

Special Counsel | Sydney

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