Noyes Bros Pty Ltd v Evans Deakin Industries Limited

Evans Deakin Industries Limited (the applicant) sought special leave to appeal from a decision of the Court of Appeal. The dispute concerned whether a contract had been formed between the parties, specifically regarding the sale of approximately 98 ball valves. The applicant contended that the Court of Appeal erred in finding that a contract existed based on an exchange of telexes, arguing that a fundamental term, the delivery date, remained unresolved.

The High Court was required to determine whether the Court of Appeal had correctly concluded that a contract had come into existence, despite the absence of an express agreement on the delivery date. This involved considering whether the Court of Appeal had misapplied principles regarding the resolution of ambiguity and the formation of contracts, particularly in circumstances where a fundamental term was not explicitly agreed upon. The applicant also argued that the Court of Appeal's conclusion was plainly wrong and that its judgment would cause injustice.

The applicant's primary submission was that the Court of Appeal had incorrectly applied principles from *The Council of the Upper Hunter County District v Australian Chilling and Freezing Co* to establish a contract in the absence of agreement on a fundamental term, rather than using them to resolve ambiguity within an existing contract. Furthermore, the applicant argued that the Court of Appeal had disregarded the established principle that acceptance cannot be inferred from silence, except in exceptional circumstances. The applicant highlighted that the delivery date was a fundamental term, evidenced by the inclusion of a liquidated damages clause for delayed delivery in the purchase order, a fact acknowledged by the Court of Appeal itself.