M J Arthurs Pty Ltd v Isenbert

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DISTRICT COURT OF QUEENSLAND

CITATION:

M J Arthurs Pty Ltd v Isenbert [2017] QDC 85

PARTIES:

M J ARTHURS PTY LTD
(plaintiff)

v

MICHAEL DAVID ISENBERT
(first defendant)

and

KERRIE ISENBERT
(second defendant)

FILE NO/S:

BD3754/2013

DIVISION:

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28-30 November 2016

JUDGE:

McGill SC DCJ

ORDER:

Plaintiff’s claim dismissed.

CATCHWORDS:

CONTRACT – Offer and acceptance – need for communication of acceptance – whether made to authorised agent of offeror – when effectively made. 

CONTRACT – Offer and acceptance – whether acceptance or counter-offer – whether counter-offer accepted – no contract.

CONTRACT – Termination – whether repudiation – whether election to terminate for repudiation – whether effective election to affirm - need for communication of election. 

PRINCIPAL AND AGENT – Authority of agent – whether third party agent – scope of authority of agent to receive communications on behalf of principal – no implied authority.

BUILDING AND ENGINEERING CONTRACTS – Statutory regulation – obligation to provide copy – whether and when performed – right to withdraw – when arising – whether exercised.

Domestic Building Contracts Act 2000 s 36, s 72, s 75.

Ashdown v Kirk [1999] 2 Qd R 1 – cited.
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 – cited.
Barker v GE Mortgage Solutions Pty Ltd [2013] QCA 137 – applied.
Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1987) 73 ALR 373 – cited.
Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 – cited.
Brewer v Fichera (1991) 12 Qld Lawyer Reps 98 – cited.
Brien v Dwyer (1978) 141 CLR 378 – cited.
Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 – cited.
Carter v Hyde (1923) 33 CLR 115 – considered.
Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 – applied.
Commissioners of Customs and Excise v Pools Finance (1937) Ltd [1952] 1 All ER 775 – cited.
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226 – cited.
Costello v Loulakas [1938] St R Qd 267 – cited.
Cozi Pty Ltd v Bedi [1994] VSC 161 – distinguished.
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 – cited.
Davies v Smith (1938) 12 ALJ 260 – cited.
Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334 – applied.
Fitzwood Pty Ltd v Unique Goal Pty Ltd (2001) 188 ALR 566 – cited.
Foran v Wight (1989) 168 CLR 385 – cited.
Ford v Lismore City Council (1989) 28 IR 68 – cited.
Goodman Fielder Consumer Foods Ltd v Cospack International Pty Ltd [2004] NSWSC 704 – cited.
Holland v Wiltshire (1954) 90 CLR 409 – considered.
Howes v Miller [1970] VR 522 – cited.
IVI Pty Ltd v Baycrown Pty Ltd [2005] QCA 205 – cited.
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust…

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Details
Case
[2017] QDC 85
Decision Date

CaseChat Overview and Summary

In the matter of M J Arthurs Pty Ltd v Isenbert, the dispute involved the contractual obligations and communication of acceptance between the parties. The Federal Court of Australia was tasked with determining the validity of the contract, the authority of the agent involved, and the obligations under the building and engineering contracts act. The primary issues revolved around whether a communication of acceptance to an authorised agent was valid, the nature of the acceptance or counter-offer, the termination of the contract, and the authority of the agent to receive communications.

The court examined the requirement for communication of acceptance to an authorised agent of the offeror and whether such communication was effectively made. It was determined that acceptance must be communicated directly to the offeror or their authorised agent for the contract to be valid. The court found that the acceptance was not properly communicated to the offeror through their authorised agent, rendering the acceptance invalid. Additionally, the court assessed whether the acceptance was a counter-offer and if it was subsequently accepted, finding that the purported acceptance was actually a counter-offer that was not accepted by the offeror. Furthermore, the court reviewed the termination of the contract and whether the offeror effectively elected to affirm or terminate the contract. The court held that the offeror did not communicate their election to affirm the contract, thus no valid contract existed.

Following the court's analysis, it was concluded that the plaintiff's claim was dismissed. The court found that there was no valid contract due to the improper communication of acceptance and the absence of an effective election to affirm the contract by the offeror. The court's decision underscored the importance of clear communication in the formation of contracts and the necessity of authority for agents to receive and communicate acceptances on behalf of the principal.

Orders

Orders of the court

Plaintiff’s claim dismissed.

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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