1. Refer the parties to court-annexed mediation on a date to be fixed as to the costs assessment process invoked by the defendant. 2. Direct the parties to liaise with Ward CJ in Eq’s Associate for the fixing of a date for court-annexed mediation. 3. Order that the summons filed 14 December 2018 be dismissed. 4. Discharge the injunction granted by Pembroke J on 14 December 2018, with effect from the termination of the mediation ordered in Order 1 above. 5. Order the plaintiff to pay the defendant’s costs of the summons.
Catchwords:
CONTRACTS — Formation — Agreement – Deed of Settlement – whether binding agreement reached between parties in relation to the payment of legal costs through acceptance of a counter-offer in a telephone conversation or through a combination of the acceptance of counter-offer, the forwarding of an email attaching an executed deed of settlement and release, and the receipt of that document – alternatively whether provision of a draft of the deed of settlement amounted to offer capable on acceptance of giving rise to binding agreement – held that there was no common intention, objectively ascertainable, on the part of the parties to be bound unless and until the agreement was documented in writing and signed – summons dismissed with costs and orders made for parties to attend a court-annexed mediation.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Cohen v Morgans [2019] NSWSC 1634
Case
[2019] NSWSC 1634
Decision Date
CaseChat Overview and Summary
Cohen and Morgans appeared before the court in a dispute concerning the formation of a contract regarding the payment of legal costs. The crux of the matter was whether the parties had reached a binding agreement through a series of communications, including a telephone conversation and the exchange of emails with an executed deed of settlement attached. Cohen argued that a binding agreement was reached through the acceptance of a counter-offer in the telephone conversation, or alternatively, through the acceptance of the counter-offer, the forwarding of an executed deed, and the receipt of that document. Morgans contended that no binding agreement existed until the deed of settlement was documented in writing and signed by both parties.
The court had to determine if there was an objectively ascertainable common intention between the parties to be bound by the terms of the agreement and if the provision of a draft deed of settlement, upon acceptance, could give rise to a binding contract. The court examined the communications between the parties and found that there was no evidence of a mutual intention to be bound by the terms of the agreement unless and until the agreement was documented in writing and signed. The court held that the absence of a written and signed document meant that no binding agreement had been reached between the parties.
Consequently, the court dismissed the summons with costs and made orders for the parties to attend a court-annexed mediation. The reasoning was grounded in the principle that in the absence of a written and signed document, there was no evidence of a mutual intention to be bound by the terms of the agreement. This decision underscores the importance of written agreements in ensuring the enforceability of contracts.