Lucke v Cleary & Ors

(2011) 111 SASR 134; [2011] SASCFC 118

South Australia Full Court

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Formation of contractual relations
3. › Agreements contemplating execution of formal document
4. › Masters v Cameron categories
5. › Fourth category — parties bound immediately while expecting further contract with additional terms
6. › Whether email agreement to settle litigation constituted binding contract where deed contemplated but not executed
1. Contract
2. › Principal and agent
3. › Authority of agents
4. › Solicitor's authority to bind client
5. › Ostensible authority in context of litigation
6. › Whether solicitor had ostensible authority to settle litigation
7. › Whether settlement terms contained matter collateral to the action
1. Appeal
2. › General principles
3. › Points and objections not taken below
4. › When not allowed to be raised on appeal
5. › Whether argument deliberately abandoned at trial may be raised on appeal
6. › Whether argument involves determination of question of law only
7. › Law of Property Act 1936 (SA), s 29

Quick Take

A stipulation in a settlement agreement that terms will be reduced to a deed does not of itself prevent the agreement from being immediately binding. Where parties have agreed essential terms and their subsequent conduct confirms an intention to be bound, the requirement for a deed is merely a mechanism to implement the settlement. The agreement may fall within the fourth Masters v Cameron category where parties expect to make a further contract with additional terms. A solicitor has ostensible authority to bind a client to a settlement of litigation provided the terms are not collateral to the action.