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Hookway v Hookway

Hookway v Hookway

Case [2020] TASSC 36 21 July 2020

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[2020] TASSC 36

COURT: SUPREME COURT OF TASMANIA

CITATION: Hookway v Hookway [2020] TASSC 36

PARTIES:  HOOKWAY, Tamzin Peta
  v
  HOOKWAY, Stirling Mathew

FILE NO:  754/2019
DELIVERED ON:  21 July 2020
DELIVERED AT:  Hobart
HEARING DATE:  19 November 2019
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Contracts – General contractual principles – Offer and acceptance – Agreements contemplating execution of formal document – Whether concluded contract – Heads of Agreement – Intended to be concluded contract – Parties intended actions to be taken by non-parties – No express terms as to consequences if such actions not taken – No implied terms so obvious as to go without saying – Not a concluded contract.

Thorby v Goldberg (1964) 112 CLR 597; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600; Austra Tanks Pty Ltd v Running [1982] 2 NSWLR 840; Western Broadcasting Services v Seaga [2007] UKPC 19; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26, 260 CLR 1; Aotearoa International Ltd v Scancarriers A/S [1985] 1 NZLR 513; ANZ Banking Group Limited v Frost Holdings Pty Ltd [1989] VR 695, referred to.
Aust Dig Contracts [37]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine SC
             Defendant:  T Mitchell
Solicitors:
             Plaintiff:  Douglas & Collins
             Defendant:  Mills Oakley

Judgment Number: [2020] TASSC 36
Number of paragraphs: 44

Serial No 36/2020
File No 754/2019

TAMZIN PETA HOOKWAY v STIRLING MATHEW HOOKWAY

REASONS FOR JUDGMENT BLOW CJ

21 July 2020

The plaintiff, Tamzin Hookway, is the sister of the defendant, Stirling Hookway. I will take the liberty of referring to them by their first names. For years they have been involved in a complicated dispute with one another about the assets of their late father's residuary estate, and the assets and liabilities of four family companies. In August and December 2018 they attended mediation sessions. As a result they reached a settlement and signed a document entitled "Heads of Agreement" that was dated 4 December 2018.
That document began with the following statement:
"It is intended that these heads of agreement shall be binding and that the terms will be reflected in a more formal document to be executed prior to 14 December 2018."
No such formal document has been executed. Both parties accept that the Heads of Agreement was intended to constitute a binding and enforceable contract. However Tamzin contends that the parties did not succeed in creating a binding and enforceable contract. She has brought this action, seeking a declaration that the Heads of Agreement is "void, unenforceable or otherwise legally ineffective". Stirling contends that it is a binding and enforceable contract. He has counterclaimed, seeking orders for specific performance.
Tamzin's principal contention is that when the parties agreed upon the terms of the Heads of Agreement, they did not turn their minds to certain contingencies and that, as a result, the terms of their agreement are so incomplete that no valid…

Grounds of appeal

[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.

Continue reading Hookway v Hookway

Details

AGLC: Hookway v Hookway [2020] TASSC 36
Case: [2020] TASSC 36
Decision Date: 21 July 2020

CaseChat Overview and Summary

The case of Hookway v Hookway involved a dispute between the parties regarding the enforceability of a Heads of Agreement. The dispute was heard by the Supreme Court of New South Wales. The core issue was whether the Heads of Agreement constituted a binding contract, despite the contemplation of a subsequent formal document.

The legal issue before the court was whether the Heads of Agreement constituted a concluded contract or merely an agreement to agree at a later date. The court needed to determine if the intentions of the parties, as expressed in the Heads of Agreement, were sufficient to create binding obligations, even in the absence of a formal written contract. Specifically, the court had to consider whether the Heads of Agreement contained all the essential terms of the agreement, or if it was merely a preliminary understanding requiring further documentation.

The court held that the Heads of Agreement did not constitute a concluded contract. It found that the parties intended to be bound by the terms of the Heads of Agreement but also anticipated taking further actions, such as executing a formal written contract, which would not involve the parties directly. The court noted that there were no express terms addressing the consequences if such actions were not taken, and no implied terms were so obvious as to go without saying. Consequently, the court concluded that the Heads of Agreement did not create a binding contract.

The court's decision resulted in the enforcement of the Heads of Agreement being rejected. The court found that the agreement was not sufficiently comprehensive to be considered a concluded contract and that further documentation was necessary to finalise the agreement.

Orders