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Queensland Phosphate Pty Ltd v Korda

Queensland Phosphate Pty Ltd v Korda

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Case Copied 26 September 2017 26 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0056

QUEENSLAND PHOSPHATE PTY LTD	First Applicant
and
PARADISE PHOSPHATE LIMITED	Second Applicant
v
MARK ANTHONY KORDA and CRAIG PETER SHEPARD (as joint and several liquidators of LEGEND INTERNATIONAL HOLDINGS INC (IN LIQUIDATION))	Respondents

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JUDGES:	TATE, BEACH JJA and SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 August 2017
DATE OF JUDGMENT:	26 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 269
JUDGMENT APPEALED FROM:	Mark Anthony Korda and Craig Peter Shepard (as joint and several liquidators of Legend International Holdings Inc (In Liq)) v Queensland Phosphate Pty Ltd & Paradise Phosphate Ltd (Unreported, Supreme Court of Victoria, Judd J, 1 May 2017)

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CONTRACT – Offer and acceptance – Exchange of emails – Whether parties made binding contract – Whether parties intended to be immediately bound by what they had agreed – Whether agreement contemplated execution of formal deed of settlement and releases.

CONTRACT – Appeal – Judge’s finding that parties’ agreement contemplated execution of formal deed of settlement before agreement became binding – Whether Judge’s finding was correct – Judge’s finding correct – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr L Glick QC with Mr D Ratnam	Judd Commercial Lawyers
For the Respondents	Ms C G Button with Ms R Zambelli	Arnold Bloch Leibler Lawyers and Advisers

TATE JA

BEACH JA
SIFRIS AJA:

The issue in this case is whether an exchange of emails between the parties’ solicitors gave rise to a concluded and enforceable agreement to terminate a proceeding that was on foot at the time the emails were sent. The judge at first instance ruled that the exchange did not constitute such a settlement[1] and made a declaration that the proceeding was not settled and remained extant. The applicants, who were the defendants in the proceeding below, seek leave to appeal from the decision made by the judge. They contend that the exchange effected a concluded and enforceable agreement to terminate the proceeding immediately.
[1]Mark Anthony Korda and Craig Peter Shepard (as joint and several liquidators of Legend International Holdings Inc (In Liq)) v Queensland Phosphate Pty Ltd & Paradise Phosphate Ltd (Unreported, Supreme Court of Victoria, Judd J, 1 May 2017) (‘Reasons’).

Background facts

The respondents were appointed liquidators of Legend International Holdings Inc (in liq) (‘Legend’) by order of Randall AsJ on 2 June 2016. Legend owns 100 per cent of the shares in the second applicant, Paradise Phosphate Ltd (‘Paradise’). Paradise owns various phosphate tenements in Queensland. The current directors of Paradise are Mr Sholom Feldman and his mother, Mrs Pnina Feldman. Mr Feldman and Mrs Feldman are, respectively, the nephew and sister of Mr Joseph Gutnick.

The plaintiffs were appointed liquidators of Legend on the application of Legend’s judgment creditors, Indian Farmers Fertiliser Cooperative Ltd (‘Farmers Fertiliser’) and Kisan International Trading FZE (‘Kisan’). The debt owed by Legend to Farmers Fertiliser and Kisan arose from an arbitral award made in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 269
Decision Date: 26 September 2017

CaseChat Overview and Summary

Queensland Phosphate Pty Ltd brought an action against Korda seeking enforcement of an agreement, or alternatively, damages for breach of contract. The matter was heard in the Supreme Court of Queensland. The dispute centred on whether an exchange of emails between the parties constituted a binding contract, or if the agreement was contingent upon the execution of a formal deed of settlement and releases.

The legal issues that the court was required to decide were whether the parties had made a binding contract through their exchange of emails, and whether the parties intended to be immediately bound by what they had agreed. Additionally, the court had to determine whether the agreement contemplated the execution of a formal deed of settlement and releases before the agreement became binding.

In its reasoning, the court found that the parties had indeed made a binding contract through their exchange of emails. However, the court also found that the agreement contemplated the execution of a formal deed of settlement and releases before the agreement became binding. The court concluded that the parties intended to be immediately bound by what they had agreed, but the agreement was contingent upon the execution of a formal deed of settlement and releases. The court found that the parties' intention to be immediately bound by what they had agreed was evidenced by their conduct, which included the exchange of emails and the negotiation of the terms of the agreement. However, the court also found that the parties' agreement contemplated the execution of a formal deed of settlement and releases before the agreement became binding. The court found that this was evidenced by the parties' conduct, which included the negotiation of the terms of the agreement and the exchange of emails that referred to the need for a formal deed of settlement and releases.

The court dismissed the appeal and granted the application for leave to appeal. The court found that the judge's finding that the parties' agreement contemplated the execution of a formal deed of settlement and releases before the agreement became binding was correct. The court found that the judge's reasoning was sound and that the evidence supported the judge's finding.

Orders