Feldman v GNM Australia Ltd

The appeal in *Feldman v GNM Australia Ltd* concerned whether a binding agreement had been reached between the parties, Mr Feldman (the appellant) and GNM Australia Ltd (the respondent), prior to the execution of a deed of release. The dispute arose from correspondence exchanged between the parties, with the appellant contending that a binding agreement existed, while the respondent argued otherwise. The matter was heard in the Court of Appeal of New South Wales, with Beazley P, McColl and Macfarlan JJA presiding.

The central legal issues before the Court of Appeal were whether the parties intended to be bound by the terms discussed in their correspondence, or if they intended to be bound only upon the execution of a formal deed. This required the court to consider whether the agreement, if any, was incomplete, particularly in relation to a term concerning confidentiality. Furthermore, the court had to determine whether the appellant's solicitor possessed ostensible authority to bind his client to such an agreement, especially given the context of ongoing litigation.

The Court of Appeal reasoned that the language used by the parties in their correspondence was critical in determining their intention. Applying the principles established in *Masters v Cameron*, the court assessed whether the parties fell into the first category (where they intended to be bound immediately, subject to a formal document being executed) or the fourth category (where they did not intend to be bound until the formal document was executed). The court found that the correspondence indicated an intention to be bound, notwithstanding the contemplation of a formal deed. The presence of a confidentiality term did not render the agreement incomplete, and the solicitor was found to have ostensible authority to bind the appellant.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, set aside the orders of the primary judge, and dismissed the respondent's notice of motion. The respondents were ordered to pay the appellant's costs of the summons for leave to appeal, the appeal itself, and the appellant's costs at first instance.