Wright v Somerton

[2004] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

Wright v Somerton [2004] QSC 231

PARTIES:

LISBETH WRIGHT
(applicant)
v
JULIE SOMERTON
(respondent)

FILE NO/S:

BS6038/04

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

12 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2004

JUDGE:

Douglas J

ORDER:

Further submissions invited

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPALS – OFFER AND ACCEPTANCE – MATTERS NOT GIVING RISE TO A BINDING CONTRACT – STATEMENTS OF INTENTION, NEGOTIATIONS AND INVITATIONS TO TREAT – Where an exchange of correspondence by solicitors is best categorised as part of the negotiation process and dependent upon the execution of a formal agreement – Proposed sale of a half share in a business

South Coast Oils (Qld and NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680, referred
Teviot Downs Pty Ltd v MTAA Superannuation Fund [2004] QCA 57, referred
Kent v Hogarth [1995] QCA 472, cited
Nowrani v Brown [1989] 2 Qd R 582, referred
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146, referred
Masters v Cameron [1954] 91 CLR 353, distinguished
Wharf Street Pty Ltd v M Star Learning Pty Ltd [2004] QCA 256, distinguished

COUNSEL:

G D O’Sullivan for the applicant
D L Atkinson for the respondent

SOLICITORS:

James Watt & Co Solicitors for the applicant
Crowley & Greenhalgh for the respondent

1. DOUGLAS J:  This is an application for, amongst other things, a declaration that an exchange of correspondence between the solicitors for the parties created a binding contract for the sale by the applicant, Ms Wright, to the respondent, Ms Somerton, of Ms Wright’s half share in a business known as “Just Gardens” and for specific performance of that agreement.

1. The relevant parts of the first facsimile of 10 May 2004 are:

“We refer to the above matter and to recent correspondence.

We once again reiterate;

(a)That our client reserves her rights in relation to the business as set out in our letter to your client of the 27 February 2004;

(b)That likewise, and subject to the above, our client maintains that there is a valid contract on foot for the sale of the subject business to her on the basis reached by exchange of correspondence.

Without in any way resiling from her rights, as set out above, our client is prepared to make the following offer to resolve the matter which in effect for-shadows [sic] the valuation process, which is an integral part of the two positions set out in sub paragraphs (a) and (b) above.  Our client is prepared to purchase your client’s interest in the business for the sum of $100,000.00 plus 50% of the stock in trade on the date of stocktake. 

So far as the remainder of the business is concerned the matters set out in our letter of 20 April 2004 are to be taken into consideration.  Debtors and creditors and cash at bank will be adjusted between the parties and shortfall paid.  Likewise provision…