In the case of Sinclair v Balanian [2024] NSWCA 144, the New South Wales Court of Appeal was asked to decide whether parties to a deed had intended to make an agreement that bound them personally as well as the companies they represented. The company of Mrs Sinclair was Fiona and John Sinclair Pty Ltd. Launch Partners Pty Ltd and Burns Bay Services Pty Ltd were companies of Mr Balanian.

The dispute related to claims by Mrs Sinclair and her company following disagreements involving an investments funds business and in particular over money advanced by Mr Balanian for cryptocurrency investments in 2018. Mrs Sinclair also represented her husband who died before the commencement of the proceedings.

The proceedings progressed to the point of a mediation. The parties agreed that Ms Terry Zabetakis be appointed mediator. None of the parties to the dispute wanted their solicitors to attend the mediation. Ms Zabetakis had asked for copies of the pleadings and affidavits but had never received them. Ms Zabetakis gave evidence that Mrs Sinclair wanted the matter resolved on the day and that she wanted her life back.

Terms of settlement were agreed and Ms Zabetakis prepared a document that is described as a deed. Ms Zabetakis repeatedly asked the parties if they wanted to have the settlement document reviewed by their solicitors; they each refused. Mrs Sinclair and Mr Balanian signed in the signature blocks next to their companies.

After the mediation, Mrs Sinclair claimed that the document did not bind herself and Mr Balanian because, among other reasons they did not sign in their personal capacities.

There is no doubt that the settlement document was not prepared as well as it might be. It did not comply with the requirements of the making of a deed because the signatures were not witnessed. The first question to be answered by the judge was whether it could operate as an agreement. The answer was yes. Because the parties signed as representing their companies and not personally the court then was required to decide whether signing the document as they did bound each of them personally.

In deciding this question the court referred to earlier decisions and held that the words and conduct of the parties must be examined to find out if they had agreed to bind themselves personally to the agreement; the court held that it was clear that all the parties wished to resolve the dispute on the day and that this involved the individuals as well as the companies. Also that the deed was drafted in less than ideal circumstances with the mediator working under pressure and with the parties refusing to delay the settlement so that their solicitors could review the settlement document.

In all of the circumstances, the court held that a settlement had been reached on the terms of the deed and bound each of the parties, including the individuals, as an agreement.