Lucke v Cleary

The appeal concerned a dispute over property, arising after the parties had informed the District Court that they had reached a settlement agreement and had the trial date vacated. A deed was drafted and signed by the four defendants, but the plaintiff did not execute it. The central question was whether an enforceable agreement had been made to settle the litigation, or if the parties intended to be bound only upon the execution of the deed, and whether the plaintiff's solicitors had ostensible authority to enter into such a contract.

The court was required to determine whether the parties had entered into a binding contract, considering whether their intention was to be immediately bound by their agreement, even if a further contract with additional terms was contemplated. It also had to assess whether the terms of the agreement were sufficiently certain and whether the appellant's solicitors possessed ostensible authority to settle the litigation on behalf of the appellant.

The court held that the parties had indeed entered into an enforceable contract. It reasoned that the parties intended to be legally bound by the essential elements of their agreement, which were sufficiently certain and evidenced by an email from the defendants' solicitors on 14 October 2010. The requirement for a deed was considered a mechanism to implement the settlement agreement, rather than a condition precedent to its formation. The court found that the plaintiff's solicitor had ostensible authority to settle the litigation.

The appeal was dismissed. The court also refused the appellant permission to amend its notice of appeal to add a ground relating to the Law of Property Act 1936 (SA), finding that the argument was not a pure question of law, had not been inadvertently abandoned at trial, and that granting permission was neither expedient nor in the interests of justice.