Sayed v National Australia Bank Limited

The appeal concerned a dispute between Mr and Mrs Sayed (the appellants) and National Australia Bank Limited (the respondent) regarding the enforceability of an agreement. The core of the disagreement lay in whether a term providing for a mutual release was incorporated into an "in principle agreement" that was subsequently amended to be binding. The matter came before the Court of Appeal of New South Wales.

The legal issues before the court were whether the "in principle agreement," which was subject to a formal deed that might contain further terms, was capable of specific performance. Specifically, the court had to determine if a release term, discussed in email exchanges but not explicitly included in the written agreement, was incorporated or to be implied into the binding agreement. The court also considered whether the "in principle agreement" constituted an accord executory, meaning it was not yet fully performed and therefore not capable of specific performance.

The Court of Appeal found that the "in principle agreement," despite being amended to be binding, was not capable of specific performance. The court reasoned that the agreement was subject to the execution of a formal deed, and the absence of a final executed deed meant that the agreement remained executory. Furthermore, the court determined that the release term, which was a significant point of contention and had not been expressly incorporated into the binding written agreement, could not be implied. Consequently, the court allowed the appeal, setting aside the primary judge's orders for specific enforcement and the consent judgment.