CITATION: Player & Ors v Isenberg & Ors [2002] NSWCA 186 FILE NUMBER(S): CA 40621/01 HEARING DATE(S): 16 May 2002 JUDGMENT DATE:
20 June 2002PARTIES :
Graeme Phillip Player - First Appellant
Grant Edward Spedding - Second Appellant
David John Catts - Third Appellant
Norman Saul Isenberg - First Respondent
Nan's Enterprises Pty Ltd - Second Respondent
Borlob Pty Ltd (as trustee for the Borlob Property Trust and the Borlob Unit Trust) - Third RespondentJUDGMENT OF: Beazley JA at 1; Giles JA at 63; Ipp AJA at 64
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :7414/99 LOWER COURT
JUDICIAL OFFICER :Garling DCJ
COUNSEL: P Biscoe QC & C A Moore - First, Second and Third Appellants
M Macrossan - First and Second RespondentsSOLICITORS: The Law Partnership - First, Second and Third Appellants
Macquarie Legal Practice - RespondentsCATCHWORDS: Partnership - agency - contract - parties to the contract - property and price - consideration - intention to create immediately binding contract. LEGISLATION CITED: Corporations Law (C'th);
Partnership Act 1892 (NSW).CASES CITED: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540;
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266;
Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847;
Elgas Ltd v AJ Young Industries Pty Ltd (1986) 4 BPR 9329;
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251;
Geebung Investments v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551;
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631;
G Scammell & Nephew Ltd v H C & J G Ouston [1941] AC 251;
Poliwka v Heven Holdings Pty Ltd (No 2) (1992) 8 ACSR 747;
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596;
Shirlaw v Southern Foundaries (1926) Ltd [1939] 2 KB 206;
Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310;
Trident General Insurance Co Ltd v NcNiece Bros Pty Ltd (1988) 165 CLR 107;
TS Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147.DECISION: (i) Appeal allowed; (ii) Orders of the trial judge be set aside; (iii) Verdict for the appellants and the third respondent; (iv) Judgment accordingly; (v) The first and second respondents to pay the appellants' costs of the trial and of the appeal, but to have a certificate under the Suitors' Fund Act 1951 (NSW), if so entitled.
CA 40621/01
DC 7414/99Thursday, 20 June 2002BEAZLEY JA
GILES JA
IPP AJA
PLAYER v ISENBERG
FACTS
The first and second appellants (Player and Spedding) and the first respondent (Isenberg) had been partners in a solicitors’ practice. The third appellant (Catts) was an employee of the practice. The partnership assets were held in two trusts. In the main and to the extent relevant, Player,…
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Details
- AGLC
- Player v Isenberg [2002] NSWCA 186
- Case
- [2002] NSWCA 186
- Decision Date
CaseChat Overview and Summary
Player and Isenberg were parties to a dispute concerning a contract for the sale of property. The Court of Appeal of New South Wales was required to determine the appeal from the decision of the trial judge.
The central legal issues before the Court of Appeal were whether the appellants were parties to the contract, whether the contract was binding, and if so, what the terms of that contract were, particularly regarding the property and price. The court also considered the principles of agency in the context of partnership and the intention of the parties to create an immediately binding agreement.
The Court of Appeal found that the trial judge had erred in concluding that a binding contract had been formed. The court reasoned that the evidence did not establish that the appellants had intended to be immediately bound by the terms presented, nor that the third respondent had acted as their agent with authority to bind them to such an agreement. The principles of contract formation, including offer, acceptance, and intention to create legal relations, were applied.
The appeal was allowed, and the orders of the trial judge were set aside. A verdict was entered for the appellants and the third respondent, with judgment accordingly. The first and second respondents were ordered to pay the appellants' costs of the trial and the appeal, with a provision for a certificate under the Suitors' Fund Act 1951 (NSW) if applicable.
The central legal issues before the Court of Appeal were whether the appellants were parties to the contract, whether the contract was binding, and if so, what the terms of that contract were, particularly regarding the property and price. The court also considered the principles of agency in the context of partnership and the intention of the parties to create an immediately binding agreement.
The Court of Appeal found that the trial judge had erred in concluding that a binding contract had been formed. The court reasoned that the evidence did not establish that the appellants had intended to be immediately bound by the terms presented, nor that the third respondent had acted as their agent with authority to bind them to such an agreement. The principles of contract formation, including offer, acceptance, and intention to create legal relations, were applied.
The appeal was allowed, and the orders of the trial judge were set aside. A verdict was entered for the appellants and the third respondent, with judgment accordingly. The first and second respondents were ordered to pay the appellants' costs of the trial and the appeal, with a provision for a certificate under the Suitors' Fund Act 1951 (NSW) if applicable.
Orders
Orders of the court
(i) Appeal allowed; (ii) Orders of the trial judge be set aside; (iii) Verdict for the appellants and the third respondent; (iv) Judgment accordingly; (v) The first and second respondents to pay the appellants' costs of the trial and of the appeal, but to have a certificate under the Suitors' Fund Act 1951 (NSW), if so entitled.
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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