role of these presumptions in Ermogenous v Greek Orthodox Community of SA Inc (Ermogenous)

One of the key factors the courts consider when seeking to establish the existence of a contract is the intention of the parties to create legal relations. In finding such an intention it has been common for the courts to rely on two presumptions: if the parties to the agreement are in a social or domestic relationship, the presumption is that they do not intend the agreement to give rise to legal relations;conversely, if the parties are in a business or commercial relationship, the presumption is that the agreement is meant to be legally binding. Both of these presumptions can be rebutted by evidence to the contrary.

In 2002 the role of these presumptions in finding the requisite intention was seriously called into question by the High Court of Australia in Ermogenous v Greek Orthodox Community of SA Inc (Ermogenous). Ten years later, in Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Evans)
the Full Federal Court of Australia clarified the findings of the High Court in this regard. This clarification suggests that, while the relationship between the parties to an agreement still needs to be considered, the predominant role of the rebuttable presumptions in this area has been extinguished.

Daniel Khoury Victorian Law Institute Journal May 2014 p45


Discuss and evaluate this statement in the light of decided case law. State, with reasons, whether you agree or disagree with the assertion made by the author that the rebuttable presumptions have in fact been extinguished.

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