Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd

Forte Sydney Construction Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the primary judge who had dismissed its claim against N Moit & Sons (NSW) Pty Ltd (the respondent). The dispute concerned whether a binding contract had been formed between the parties, with the appellant contending that the respondent had accepted its proposed contract by commencing work.

The central legal issue before the Court of Appeal was whether the respondent's conduct in commencing and performing work constituted acceptance of the contract as propounded by the appellant, despite neither party having formally executed or expressly accepted the other's draft contractual documents. The Court also considered the extent to which subsequent conduct, including the appellant's requests for variations purportedly under the contract, was relevant to determining whether a contract had been formed.

The Court of Appeal found that the primary judge had erred in concluding that no contract had been formed. Applying principles of contract formation by conduct, the Court reasoned that the respondent's commencement of work, in circumstances where it was aware of the appellant's proposed terms and had not raised any objections, demonstrated an intention to be bound by those terms. The Court held that the subsequent conduct of the parties, including the appellant's requests for variations in accordance with the draft contract, further supported the existence of a binding agreement.

Consequently, the appeal was allowed, and the orders of the court below were set aside. The Court of Appeal entered judgment for the appellant on its claim in the sum of $292,833.67, dismissed the respondent's cross-claim, and ordered the respondent to pay the appellant's costs of the proceedings below and the appeal.