Kriketos v Livschitz

[2009] NSWCA 96

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Offer and acceptance
4. › Acceptance by conduct
5. › Whether silence and subsequent conduct constituted acceptance of offer
6. › Whether conduct necessarily led to inference of acceptance
1. Contract
2. › Formation
3. › Inference of contract from conduct
4. › Principles relating to inference of contract from conduct and silence
5. › Test to determine whether acceptance can be inferred from subsequent conduct
6. › Whether conduct must necessarily lead to inference of acceptance or merely be consistent with agreement
1. Contract
2. › Formation
3. › Negotiations between solicitors
4. › Whether exchange of three letters constituted binding agreement
5. › Whether mutual assent communicated
6. › Whether essential terms agreed
1. Contract
2. › Formation
3. › Objective theory of contract
4. › Whether reasonable person would conclude consensus reached
5. › Surrounding circumstances known to both parties

Quick Take

When assessing whether subsequent conduct evidences the formation of a contract at an earlier date, the correct test is whether the conduct necessarily leads to the inference that the offer was accepted, or is referable only to the contract alleged. A test of mere consistency with the alleged agreement is insufficient. Silence in response to a letter containing new terms is consistent with rejection rather than acceptance. The filing of an affidavit in related proceedings, where the party had independent reasons to take that step, is equivocal conduct that does not necessarily point to a concluded agreement.