Offers Made Subject to Deeds – Moss v Contracoin Pty Ltd

Written by Brooke Caulfield

The Federal Court of Australia decision in Moss v Contracoin Pty Ltd [2023] FCA 976 questioned the finality and enforceability of Calderbank offers that contained a provision indicating the parties were to enter a deed of settlement.

Facts

The relevant facts were as follows:

• The applicants commenced proceedings against the respondents alleging they were induced by misleading and deceptive conduct in purchasing cryptocurrency tokens.
• In proposing settlement of that matter, the respondents made a Calderbank offer to the applicants in the following terms:

(1) The respondents pay to the applicants the sum of $183,191.50… by way of three equal monthly instalments as follows:

1. $61,063.83 on the day thirty (30) days from the date of acceptance of this offer;
2. $61,063.83 on the day thirty (60) days from the date of acceptance of this offer; and
3. $61,063.84 on the day thirty (90) days from the date of acceptance of this offer.

(2) the CTCN Tokens purchased by the applicants be held in escrow pending full payment of the settlement monies (method to be discussed and agreed);

(3) upon full and final payment of the settlement monies the applicants authorise the transfer of the CTCN Tokens to the respondents and the parties file consent orders to discontinue the proceedings;

(4) the parties enter into a suitably worded Deed of Settlement, which includes, inter alia, confidentiality and non-disparagement provisions; and

(5) each party bear their own legal costs.

• The applicants accepted the Calderbank offer and informed the respondents they would draft the deed of settlement.
• Parties notified the court they had agreed in principle on the terms of settlement.
• Both parties continued to negotiate the terms of the deed for settlement.
• The respondents sought to extend the period of payment specified in the Calderbank offer which was agreed to by the applicants.
• The respondents failed to raise payment by the agreed date.
• The applicants filed an interlocutory application seeking to enforce settlement as agreed in the Calderbank offer. The respondents did not file any evidence in opposition to the application nor did they appear at the application.

The Court was required to determine whether there was an enforceable agreement.

Types of Agreements

In considering the dispute, the Court noted that Calderbank offers and other similar documents fall in four categories:

1. The parties have reached a final agreement on all of the terms and intend to be immediately bound by those terms, but also propose to have the terms restated in a formal document (i.e. a Deed of Release or Terms of Settlement);
2. Where the parties have completely agreed to all terms of the settlement but have made the performance of one or more terms conditional upon the execution of a formal document;
3. The intention of the parties is not to reach agreement until they enter a formal contract. In this instance the terms of agreement are not intended to have any binding effect until the formal document has been executed; or
4. The parties intend to be bound immediately by all the terms they have agreed to but expect to make a further formal contract in substitution of the first agreement. This formal contract may include additional terms of settlement as agreed between the parties.

Factors to Consider

In determining what the objective intention of the parties was, and therefore, which type of agreement the offer fell into, the Court considered the following factors:

• Plain language
  • The use of plain language indicated an intention to be bound immediately upon acceptance.
• Payment obligations
  • The payment terms were clear, unambiguous and capable of being given immediate effect. The reference to the dates for payment were calculated in reference to the date of acceptance of the offer (and not by reference to the execution of a deed or some other formal agreement)
• Conditional nature of deed of settlement
  • The acceptance of the offer was not expressed to be conditional on the execution of a deed. Rather the offer acknowledged a deed would be prepared in accordance with the terms of the offer.  The obligation to pay was separate to the obligation to enter and agree to the deed of settlement.
• Nature of Calderbank offers
  • The offer was expressed as a Calderbank offer and, as such, this supported the inference that the objective intention of the parties was for the offer to be binding.
• Timing
  • The offer was made while proceedings were on foot and shortly before a case management hearing. This supported the inference that the parties intended to be immediately bound. Had a settlement not been reached, the proceedings would have continued with case management orders being made.
• Subsequent communications
• Letters to the Court and correspondence between the parties supported the inference that the parties intended the offer to be immediately binding. The parties communicated to the Court that the matter had settled.

The Federal Court Judgement

In considering the above factors, the Court found the offer fell within the first or, alternatively, the fourth category of agreements. The Court determined that the objective intention of the parties was to be bound by the terms of the offer once it was accepted. Hence, the applicants were entitled to enforce the payment obligations in the offer despite the parties not having agreed to the terms of the Deed of Settlement.

Key Insights to Consider When Making Offers of Settlement

• The decision is relevant for property insurer claims advisors, who are regularly confronted with offers that make reference to Deeds of Settlement. In considering and responding to those offers, we recommend claims advisors consider:
  • The parties’ intention in making the offer. In considering this, think about the 6 factors listed above. For example:
    • Does the offer say something like “we will agree to pay only once a Release is signed” or does it say “we will raise payment within 7 days but we also wish to execute a Release in relation to the payment”? The first indicates payment will not be raised until the Release is executed whereas the second indicates the third party is willing to raise payment but would also like a Release to be executed at some time in the future.
    • Does the offer say something like “payment will be made within 14 days from the date of acceptance of the offer” or does it say “payment will be raised within 14 days of the execution of a Deed of Settlement”? The first indicates payment falls due in reference to the date of the acceptance of the offer and therefore is not contingent on the Deed of Settlement being agreed to and signed. Whereas the second indicates that payment is conditional upon, and therefore will not be raised until, the Deed of Settlement is executed. 
  • If you accept an offer that is not conditional upon the execution of a Deed of Settlement, the third party needs to comply with the terms (ie raise payment or do another thing) even if you have not yet agreed to the terms of the Deed of Settlement.
  • If you are seeking that the third party raise payment in the short term, consider making an offer that allows for a Deed of Settlement or Release to be drafted once payment has been made.
  • In any situation, it is a good idea for claims advisors to seek legal advice before entering into any Deed of Settlement or Release to ensure there are no unintended consequences that may arise from the terms and effect of the deed.

Should you require any assistance with these issues or wish to discuss the case and its implications, please contact James Mulcahy, Brooke Caulfield or any member of the Ligeti Partners’ team on (03) 9947 4500.