Kriketos v Livschitz

Case [2009] NSWCA 96

New South Wales


Court of Appeal


CITATION: Kriketos v Livschitz [2009] NSWCA 96
HEARING DATE(S): 11 February 2009
 
JUDGMENT DATE: 
5 May 2009
JUDGMENT OF: Allsop P at 1; McColl JA at 16; Macfarlan JA at 178
DECISION: 1. Appeal allowed. 2. Set aside the verdict and judgment entered for the respondent and in lieu thereof order that there be judgment for the appellant. 3. Respondent to pay the appellant’s costs of the appeal and of the District Court proceedings. 4. Respondent to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified in relation to the costs of the appeal.
CATCHWORDS: CONTRACTS – offer and acceptance – acceptance by conduct – conduct evidencing acceptance – principles relating to the inference of a contract from conduct and silence – negotiations between parties’ solicitors – no response to last letter from offeror – whether offer accepted – whether final mutual assent to offer - CONTRACTS – subsequent conduct – test to determine whether acceptance of offer can be inferred from subsequent conduct
LEGISLATION CITED: Corporations Law
Suitors’ Fund Act 1951
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
CATEGORY: Principal judgment
CASES CITED: Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Australian Woollen Mills Pty Ltd v Commonwealth [1955] UKPCHCA 3;(1955) 93 CLR 546
Baloglow v Konstanidis & Ors [2001] NSWCA 451
Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; (1908) 5 CLR 647
Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622
Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
Codelfa Construction Pty Limited v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1.
Empirnall Holdings Pty Ltd v Machon Paull [1988] 14 NSWLR 523
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Gould & Birkbeck & Bacon v Mt Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Reports 81-942
Hooker v Gilling [2007] NSWCA 99
Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Markets Ltd & Ors [2008] NSWCA 206
Insurance Commissioner v Joyce (1948) 77 CLR 39
Integrated Computer Services Pty Limited v Digital Equipment Corp (Aust) Pty Limited (1988) 5…

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AGLC
Kriketos v Livschitz [2009] NSWCA 96
Case
[2009] NSWCA 96
Decision Date

CaseChat Overview and Summary

The appeal in *Kriketos v Livschitz* concerned a dispute over whether a contract had been formed between the parties. The appellant, Kriketos, argued that no contract existed, while the respondent, Livschitz, contended that a contract had been concluded through the conduct of the parties. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the conduct of the parties, particularly in the absence of an express acceptance of the final offer, was sufficient to establish a binding contract. This required the court to consider the principles governing the inference of a contract from conduct, including the significance of silence and the test for determining whether acceptance can be inferred from subsequent actions.

The Court of Appeal found that the conduct of the parties did not demonstrate a final mutual assent to the terms of the offer. Applying established principles of contract law, the court determined that the respondent's actions did not unequivocally indicate an acceptance of the appellant's final offer. Consequently, the court concluded that no contract had been formed.

The appeal was allowed, and the verdict and judgment entered for the respondent in the District Court were set aside. Judgment was entered for the appellant, and the respondent was ordered to pay the appellant's costs of both the appeal and the District Court proceedings.

Orders

Orders of the court

1. Appeal allowed. 2. Set aside the verdict and judgment entered for the respondent and in lieu thereof order that there be judgment for the appellant. 3. Respondent to pay the appellant's costs of the appeal and of the District Court proceedings. 4. Respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified in relation to the costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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