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Also on this page: Summary of Foster v Mackinnon (1869) LR 4 CP 704 | Notice Requiring Disclosure of Settlement Instruments
What Did You Sign at Settlement?
Most men and women who purchase land go through settlement the same way. A bundle of documents arrives – sometimes dozens of pages – presented by a conveyancer or solicitor as the paperwork required to complete the purchase. You sign where you are told to sign. The purchase completes. You get the keys.
What many purchasers do not realise is that not everything in that bundle is a purchase formality.
Bundled among the transfer documents, the discharge of mortgage, and the title instruments, there are often agreements of a completely different character. These may include vegetation management agreements, conservation covenants, development contribution agreements, bushfire management conditions, biodiversity offset instruments, and similar documents. Each of these is a separate legal agreement. Each imposes ongoing obligations or restrictions on what you can do with your land – sometimes indefinitely. None of them transfers title. None of them is required to complete the purchase itself.
They were presented to you as if they were.
You May Not Have Known You Had a Choice
A purchase formality is not a choice. You sign it because the purchase cannot complete without it.
An agreement imposing ongoing restrictions on your land is a different thing entirely. It is a separate instrument, with separate legal consequences, that requires your separate, informed consent to be binding. You had the right to read it, to ask what it was, to take advice on it, and to decide whether to accept it before signing.
If no one told you that – if the document was simply placed in front of you as part of the settlement bundle without explanation – you may not have understood that you were agreeing to anything beyond completing the purchase.
The Legal Principle
English and Australian law have long recognised that a signature is only legally binding where the mind of the signer accompanied it. Where a man or woman is led to believe they are signing one type of document, and the document is in fact of a fundamentally different character, the signature may have no legal force in respect of that instrument. The doctrine is known as non est factum – “it is not my deed.”
The principle was established in Foster v Mackinnon (1869) and has been affirmed in Australian courts. It requires three things: that the mistake went to the fundamental nature of the document, not merely its terms; that the signer was not negligent in failing to identify the difference; and that the mistake was caused by the conduct of the other party in failing to properly disclose what was being presented.
A purchaser who signed a bundle of settlement documents, on the reasonable assumption that everything in the bundle was a purchase formality, and who was not separately told that some documents were ongoing agreements restricting the use of their land, was not negligent. They were relying on the professionals presenting the documents to tell them what they were signing. That is a reasonable thing to do. It is not carelessness.
What This Means for Your Land
The incidents of land held under Crown grant belong to the landowner. They include the right to use and enjoy the land, the right to exclude others, and the right to deal with the land as the owner sees fit. No local government body or statutory authority was part of the original Crown grant of your land, and no such body’s requirements formed part of the incidents conveyed by that grant.
Restrictions on those incidents require your specific, informed, voluntary acceptance. A signature obtained in a settlement bundle, without separate disclosure that a document was an ongoing agreement rather than a purchase formality, may not constitute that acceptance.
What You Can Do
If you purchased land and are now being told you are bound by an agreement you do not recall being separately explained to you at settlement, you are entitled to ask questions.
You are entitled to ask the council or body relying on that agreement to identify it precisely – by name, date, and the statutory provision under which it was created. You are entitled to ask how and when you were separately informed of its character before signing. You are entitled to ask the decision-maker responsible for its administration to identify themselves and the authority under which they act.
Those are not unreasonable requests. They are questions any lawful institution should be able to answer if it intends to hold you to an agreement.
If it cannot answer them, that matters.
This piece is provided for general information only. It does not constitute legal advice. If you believe documents were signed at settlement without adequate disclosure of their nature and effect, you should obtain independent legal advice in respect of your specific circumstances.
Without Prejudice – All Rights Reserved – Without Recourse
[Date]The Chief Executive Officer ABN Shire of Revenue [Address]
Notice Requiring Disclosure of Settlement Instruments
Consensus ad idem – agreement of minds is the foundation of any binding obligation.
1. Preliminary
This Notice is directed to ABN Shire of Revenue (the Council) and requires a specific, documented response within 21 days of the date of service.
The author is a man, the registered owner of land held under Crown grant, described as [full legal description of land] (the Land). The author acquired the Land by purchase, settlement having occurred on or about [date of settlement].
At settlement, a bundle of documents was presented to the author as the instruments required to complete the purchase. The author signed those documents in that capacity – as instruments required to complete the purchase transaction. No document within that bundle was separately identified as an agreement imposing ongoing restrictions on the use or enjoyment of the Land inconsistent with the incidents of the Crown grant.
This Notice requires the Council to identify and disclose each instrument within that settlement bundle, or otherwise relied upon by the Council, that purports to restrict, limit, condition, or otherwise qualify the author’s use and enjoyment of the Land beyond the limitations inherent in the Crown grant itself.
2. Statutory Foundation
The threshold for any lawful compulsion or imposition of consequence is established by:
- Liberty of Subject Act 1354 (28 Edw III c 3): none shall be condemned without due process of law.
- Observance of Due Process of Law Act 1368 (42 Edw III c 3): none shall be put to answer without due process of law.
Any instrument relied upon by the Council to restrict the author’s use of the Land must be grounded in a lawful process that satisfies these threshold requirements. Where no such grounding can be identified, the threshold is not met.
3. The Crown Grant and the Incidents of Ownership
The Land was originally conveyed to private ownership by Crown grant. The Crown grant carries with it the following incidents at common law:
- the right to use and enjoy the Land as the owner sees fit, subject to the limitations inherent in the Crown grant itself;
- the right to exclude others from the Land;
- the right to deal with the Land by sale, gift, or devise; and
- the right to quiet enjoyment of the Land.
These incidents attach to the Land through the Crown grant. They are not conferred by any statutory body, council, or regulatory instrument, and they are not defined or limited by reference to any such body. No local government body, including the Council, formed any part of the original Crown grant of the Land, and no local government body’s jurisdiction was among the incidents conveyed by that grant. Restrictions on those incidents – beyond the limitations inherent in the Crown grant itself and the common law as it stood at the time of that grant – require the specific, informed, voluntary acceptance of the landowner. That acceptance cannot be assumed, implied, or constructed from a signature obtained in circumstances where the nature of the document signed was not separately disclosed.
The Council is put on notice that the author does not accept that any restriction inconsistent with the Crown grant incidents has been validly imposed, absent clear demonstration of the lawful basis for that restriction and the author’s specific, informed acceptance of it.
4. The Non Est Factum Position
The doctrine established in Foster v Mackinnon (1869) LR 4 CP 704 holds that a signature has no legal force where the document signed is fundamentally different in character from what the signer was led to believe they were signing, and where the signer was not negligent in failing to appreciate that difference.
The author’s position is as follows.
At settlement, the document bundle was presented as the instruments necessary to complete the purchase of the Land. The author’s mind accompanied the signing of those instruments in that capacity – as purchase formalities. No instrument within the bundle was separately identified as a distinct agreement imposing ongoing restrictions on the use or enjoyment of the Land inconsistent with the incidents of the Crown grant. No separate negotiation occurred in respect of any such instrument. No separate disclosure was made of the ongoing character and consequence of any such instrument.
Where the Council relies upon any instrument signed at settlement as the basis for a restriction on the author’s use of the Land, the author puts the Council on notice of the following.
(a) The fundamental character of any such instrument – as an ongoing agreement restricting use of the Land beyond the incidents of the Crown grant – was not disclosed to the author separately from, or in distinction to, the purchase transaction documents.
(b) The author’s mind did not accompany a separate and distinct agreement to accept ongoing land use restrictions. The author’s mind accompanied the purchase of the Land.
(c) Where an instrument is fundamentally different in character from what the signer was led to believe, and the signer was not negligent, the signature is not that man’s deed. The author was not negligent. Settlement documents are presented to purchasers by legal professionals in a bundle. A purchaser proceeding on the reasonable and uncorrected assumption that everything in that bundle is a purchase formality is not negligent.
(d) Accordingly, any instrument within the settlement bundle that purports to restrict the author’s use of the Land in a manner inconsistent with the Crown grant incidents may not be a valid and binding instrument against the author.
The Council is invited to identify each such instrument and demonstrate, with specificity:
- the statutory authority under which the instrument was created;
- the basis upon which the Council maintains the instrument was validly executed with the author’s informed consent; and
- the basis upon which the Council maintains the instrument is binding upon the author in light of the matters set out above.
5. Questions Requiring Specific Answer
The Council is required to answer each of the following questions. These are not requests for general correspondence. Each question requires a direct, specific answer. Failure to answer each question specifically will be noted on the record.
(1) Does the Council hold any instrument, agreement, covenant, restriction, condition, or other document signed by the author at or in connection with settlement of the Land, which the Council relies upon as authority for any restriction on the author’s use of the Land? If yes, identify each such instrument by name, date, and the statutory provision under which it was created.
(2) In respect of each instrument identified in answer to question (1): was that instrument separately identified to the author, prior to signing, as a distinct agreement imposing ongoing obligations or restrictions, separate from the instruments required to complete the purchase of the Land? If so, identify the form and occasion of that disclosure.
(3) In respect of each instrument identified in answer to question (1): does the Council maintain that the instrument is valid and binding upon the author? If so, identify the specific legal basis upon which that position is held, including the statutory authority for the restriction, the authority under which the Council holds and enforces it, and the decision-maker responsible for its enforcement.
(4) Did the search or process undertaken in preparing this response extend to all instruments, agreements, and records held by the Council in connection with the Land and the author? If so, and nothing was found beyond what is disclosed, confirm that expressly.
(5) If any such instruments exist but are not disclosed in response to this Notice, identify them and state the basis for their exclusion.
(6) If no such instruments exist, confirm that expressly – because that confirmation is directly responsive to the purpose of this Notice.
6. Attribution
The author requires, in respect of any instrument the Council relies upon, the following particulars:
- the legislative authority relied upon;
- the identity of the decision-maker, and the instrument of delegation under which they acted, if applicable;
- evidence supporting the validity of the instrument;
- confirmation of any review rights available to the author; and
- identification of the officer within the Council responsible for the administration of the instrument.
Where authority is claimed through delegation, the full chain of delegation is required. A delegate cannot sub-delegate without express statutory authority to do so (delegatus non potest delegare). Where the chain cannot be demonstrated to be unbroken, the instrument has no grounded authority.
7. Access to Land
While this Notice does not at this stage address the question of access to the Land, the author notes that any right of entry claimed by the Council or its officers in connection with any instrument disclosed in response to this Notice will be subject to the same attribution analysis set out above. Any claimed right of entry must rest on specific, identifiable authority that is traceable to the Crown grant or to a statutory provision properly exercised – not to any instrument whose validity is in question under this Notice. The author reserves all rights in that regard.
8. The Record
Every response to this Notice, including any failure to respond or any partial response, will form part of the record. Where a question is not answered, that non-answer is on the record and will be treated accordingly. Where records are not produced that the Council ought to hold, the presumption runs against the Council: omnia praesumuntur contra spoliatorem.
The author does not elect to bring any proceedings. If the Council maintains that any restriction on the author’s use of the Land is valid and binding, the Council is at liberty to bring that claim before a court of competent jurisdiction constituted under Chapter III of the Constitution of Australia. The author neither consents to nor resists that election. The full record of this exchange, including this Notice, will be before that court.
All rights are reserved.
9. Response Required
A specific, written response to each question in this Notice is required within 21 days of the date of service. Correspondence should be directed to the author at the address below.
Dated: [Date]
By: ________________________
John Henry, of the family Doe
All Rights Reserved
This Notice is issued under the Framework JX8 Integrated Procedural and Attribution Framework. It does not constitute legal advice. The author is advised to obtain independent legal advice in respect of their specific circumstances.
Foster v Mackinnon (1869) LR 4 CP 704
A summary for reference
The Case
Foster v Mackinnon is an English decision of the Court of Common Pleas, decided in 1869. It established the foundational principle that a signature has no legal force where the man or woman signing was fundamentally mistaken about the nature of the document, and was not negligent in holding that mistaken belief.
The Facts
An elderly man named Mackinnon was asked to sign a document. He was told it was a guarantee. It was in fact a bill of exchange – a fundamentally different instrument carrying fundamentally different legal consequences. Mackinnon signed it without reading it, relying on the representation made to him about its nature. He had poor eyesight. The bill was subsequently negotiated to a third party, Foster, who sued Mackinnon on it.
The Decision
The Court held that Mackinnon was not bound by the bill of exchange. The reasoning, stated by Byles J, was as follows: where a man is induced to sign a document by a fraudulent misrepresentation as to its character, and the document is of a nature entirely different from what he believed it to be, and he was not negligent in failing to discover the difference, the signature is without legal effect. It is not his deed. The Latin expression the doctrine takes its name from – non est factum, meaning “it is not my deed” – captures the principle precisely.
The critical distinction the Court drew was between a mistake as to the terms or contents of a document, and a mistake as to its fundamental nature and character. A man who signs a contract on terms he has not read, but knowing it is a contract, cannot later avoid it on the ground that the terms were not what he expected. But a man who signs what he believes to be one type of instrument entirely, when it is in fact an instrument of a wholly different character, has not in law signed that instrument at all.
The Three Requirements
The doctrine established in Foster v Mackinnon requires three elements to be present.
First, the mistake must go to the fundamental nature and character of the document – not merely to its terms, its effect, or its consequences. The question is whether the document signed is a different type of instrument from what the signer believed it to be.
Second, the signer must not have been negligent. Where a man could, by ordinary care, have discovered the true nature of what he was signing, and did not take that care, the doctrine is not available to him. The protection is for those who were reasonably misled, not for those who were simply careless.
Third, the mistake must have been induced by the conduct of the other party – whether by active misrepresentation or by a failure to disclose what was being presented for signature in circumstances where disclosure was required.
Reception in Australia
The principle from Foster v Mackinnon has been received and applied in Australian law. The High Court considered the doctrine in Petelin v Cullen (1975) 132 CLR 355, affirming that non est factum remains available in Australian law where the three requirements are met, and noting that the doctrine must not be applied so broadly as to undermine the security of commercial transactions, but that it retains its proper force where a fundamental mistake as to character has been induced without negligence on the part of the signer.
Relevance to Settlement Documents
The relevance of Foster v Mackinnon to documents signed at property settlement is direct. Where a purchaser is presented with a bundle of documents as the instruments required to complete a purchase, and within that bundle are instruments of a fundamentally different character – agreements imposing ongoing restrictions on the use of the land, to which the purchaser’s mind was never separately directed – the conditions for the non est factum analysis are engaged.
The purchaser’s mind accompanied the purchase transaction. It did not separately accompany an agreement to accept ongoing land use restrictions whose character was not disclosed. A signature obtained in those circumstances is, on the principle stated in Foster v Mackinnon, not the deed of the man or woman who signed it in respect of those specific instruments.
This summary is provided for general information only and does not constitute legal advice. Independent legal advice should be obtained in respect of any specific circumstances.
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