Ipex Software Services Pty Ltd & Ors v Hosking

[2000] VSCA 239

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Consideration
4. › Past or executed consideration
5. › Whether transfer of business prior to written agreement constituted past or executed consideration
6. › Whether continuing employment and salary sacrifice constituted consideration
1. Contract
2. › Formation
3. › Certainty of terms
4. › Promise to transfer equity in group of companies and trusts
5. › Whether term '5% of the equity in the group' void for uncertainty or incompleteness
6. › Whether latitude of choice as to manner of performance renders agreement void
1. Contract
2. › Formation
3. › Intention to create legal relations
4. › Document described as 'outline of agreement'
5. › Whether parties intended to be legally bound
1. Practice and Procedure
2. › Judgments and orders
3. › Whether judgment for damages to be assessed is final or interlocutory
4. › Supreme Court Act 1986 (Vic), s 17A(4)(b)

Quick Take

Where a person transfers a business in the expectation of receiving an equity interest, and a subsequent written agreement fixes the quantum of that interest, the transfer constitutes executed (not past) consideration capable of supporting the promise. A promise to transfer a percentage of equity in a group of companies and trusts is not void for uncertainty merely because the precise form of the equity interest is not specified, particularly where the promisee seeks damages rather than specific performance. Damages for breach of such a promise are assessed on the basis that the promisor would have performed in the manner most favourable to itself.