Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd

[2015] NSWCA 1

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Agreement on essential terms
4. › Price as essential term
5. › Whether parties agreed price for duration of multi-year supply arrangement
6. › Whether price left to future negotiation renders contract incomplete
1. Contract
2. › Formation
3. › Agreement on essential terms
4. › Price review mechanism
5. › Whether agreement to negotiate price variation in good faith constitutes agreement on price
6. › Whether default price operates in absence of agreed variation
1. Evidence
2. › Admissions
3. › Admissions involving conclusions of law
4. › Whether admission by party to alleged contract on question involving legal standard carries probative weight
1. Appeal
2. › New arguments on appeal
3. › Whether party may raise new argument not put to primary judge
4. › Whether respondent may have been prejudiced by inability to adduce evidence

Quick Take

Where parties to a multi-year supply contract leave a component of the price to be determined by future negotiations depending on market conditions, and do not agree on a default price to apply if negotiations fail, the contract is incomplete for want of agreement on the essential term of price. An admission by a party's representative that a binding contract exists, being a conclusion involving the application of a legal standard, carries little or no probative weight. A new argument that the opposing party could have met by adducing evidence at trial will not be permitted on appeal.