Zabusky v Tucker and Cowen Solicitors

The matter of Zabusky v Tucker and Cowen Solicitors came before the court to determine whether a binding contract existed between the parties after an exchange of emails in August and September 2016. The applicant, Mr Zabusky, argued that a binding agreement had been reached to settle legal proceedings. The respondent, Tucker & Cowen Solicitors, contended otherwise. The case was referred to the court by his Honour Justice Boddice without any application or initiating document from either party. Following a discussion with the parties, the respondent prepared an application seeking a declaration that there was no binding agreement. The court was tasked with deciding whether the parties had indeed entered into a binding agreement based on their email exchanges.

The legal issues before the court revolved around the formation of a contractual relationship between the parties. Specifically, the court needed to determine if the parties had reached a consensus on the terms of a settlement and if they intended to be immediately bound by those terms. The court had to consider the language used by the parties, the context of their communications, and the importance they placed on having a detailed written agreement. Additionally, the court had to assess whether any conditions precedent to the compromise of the disputes had been met, such as obtaining signed authority from Amalia Zabusky to transfer her share of the trust account funds to Mr Zabusky.

The court concluded that, even if the parties had reached a broad consensus by 6 September 2016, the terms of their agreement were not sufficiently certain and complete to be capable of having contractual effect. The court emphasised that the parties intended to be bound only by a written contract containing the precise terms of their agreement. The evidence indicated that the parties had been exchanging draft documents that explicitly stated there would be no binding agreement until executed. Furthermore, the nature of the agreement, which involved the discontinuance of actions in three courts, called for precision and written acknowledgement by both parties. The court found that the parties intended their agreed terms to be reduced to writing and signed or executed, consistent with their previous drafts and Mr Zabusky's email of 25 August 2016. Therefore, the court held that no binding agreement was in place in 2016.

The court made several orders, including a declaration that the applicant and respondent did not enter into a binding agreement between 12 July 2016 and 6 September 2016. The applicant was ordered to pay the respondent's costs of the hearing on the standard basis. The matter was listed for further review either before the Caseflow Review Judge or on the Supervised Case List. The court also granted liberty to apply for further orders if necessary.