Case Reports

What amounts to a deed and when is “a deal a deal”?

In 400 George Street (Qld) Pty Limited & Ors v. BG International Limited [2010] QSC 66 (16 March 2010), the Supreme Court of Queensland determined whether an agreement for lease drafted in terms of a contract, but the signing page indicated that the document was executed as a deed, constituted a deed. The plaintiffs claimed that the document was a deed.

The relevant intention before the Court was that of the defendant.  The Court emphasised that the defendant’s “intention [was] to be ascertained from the document as a whole, read in the context of the factual matrix as known or assumed by the parties” [at 55].  Although the Court noted (in favour of the plaintiffs’ argument) that the statement at the commencement of the execution pages that the document was “executed as a deed” and the words next to the signature of the defendant's representative that it had been signed, sealed and delivered and executed as a deed [at 56], it rejected the plaintiffs' case.  Some of the circumstances that indicated that the document was not intended by the defendant to be a deed included:

• The unambiguous statement in the document to the effect that the defendant’s promises were given for those made by other parties, was inconsistent with the notion that, at least for a length of time, the defendant should be bound whilst other parties were not bound [at 57];
• The defendant did not insert a date as “the date of this Agreement”. This indicated that the defendant was not intending to be then bound [at 58];
• The Operative part of the instrument did not use the language of deeds (whereas, in contrast, the proposed lease instrument consistently used the language of deeds) [at 59]; and
• At no stage in the dealings between the parties or their solicitors was there any suggestion that the agreement for lease should operate as a deed [at 60].

Nick Galloway’s guidance on this summary gratefully acknowledged (any errors are ours) - Editor