Kestell v Davey [No 3]

The case of Kestell v Davey [No 3] involved a dispute between the plaintiff and the defendants over the terms of a contract that had been partly oral, partly written, and partly inferred through acts, conduct, and communications over time. The contract in question was for the sale of real estate, and the plaintiff sought to enforce the contract and recover damages for its breach. The defendants argued that the terms of the contract were vague or uncertain, or not supported by consideration. The case was heard in the Supreme Court of Western Australia, which had to determine whether the substance of the matters agreed upon constituted an agreement to agree, and whether the terms were vague or uncertain or not supported by consideration.

The court was required to decide several legal issues, including whether the substance of the matters agreed upon constituted an agreement to agree, and whether the terms were vague or uncertain or not supported by consideration. The court also had to consider whether expert handwriting evidence was admissible in the case, and whether the expert's reasoning was sufficiently transparent to be considered reliable.

The court found that the substance of the matters agreed upon did constitute an agreement to agree, and that the terms were not vague or uncertain or not supported by consideration. The court also found that the expert handwriting evidence was inadmissible because the expert's reasoning was not sufficiently transparent. The court held that the plaintiff had adequately justified the contention of the unusual difficulty and complexity of the matter by pointing to the nature of the proceedings that required the court to construe a series of informal (oral and inferred) agreements from a large volume of documentary evidence and lengthy witness cross-examination. Consequently, the court found that the Determination limits for certain items were inadequate due to the unusual difficulty, complexity, and importance of the proceedings as a whole.

The court ordered that the defendants pay the plaintiff's costs of the proceedings, including costs associated with the Items for which the plaintiff had claimed. The court found that the defendants' claim that these were features which the court grapples with on a daily basis and therefore should not give rise to a special costs order, understated the unusual difficulty and complexity of the factual findings that were required to be considered.