Netglory Pty Ltd v Caratti

[2013] WASC 364

Supreme Court of Western Australia

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For Australian Law.

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Interrogate

Catchwords

1. Deeds
2. › Formalities
3. › Execution
4. › Attestation
5. › Whether attestation requires signature of witness
6. › Whether attestation must be contemporaneous with execution
7. › Whether witness can subsequently attest signature of party to be bound
8. › Property Law Act 1969 (WA), s 9(1)
1. Deeds
2. › Formalities
3. › Delivery
4. › Whether deed can be delivered if party to be bound evinces intention not to be bound at time of subsequent purported attestation
1. Deeds
2. › Enforcement
3. › Action for debt on a deed
4. › Whether specific performance at common law
5. › Whether deed enforceable in absence of consideration
1. Deeds
2. › Parties
3. › Deed executed only by obligees and not by obligor
4. › Whether non-executing party is a party to the deed
5. › Objective construction of deed as a whole

Quick Take

Attestation of a deed under s 9(1) of the Property Law Act 1969 (WA) requires the attesting witness to sign the document contemporaneously with witnessing the party's execution; a signature affixed years later does not satisfy the statutory requirement. A written agreement that on its face requires an advance of money cannot be construed by reference to an alleged antecedent oral agreement that contradicts the written terms. The term 'specialty' in s 38(1)(e) of the Limitation Act 1935 (WA) means a document under seal (a deed); an instrument that fails to satisfy the formal requirements for a deed is not a specialty and attracts only the six-year limitation period.