P'Auer AG & Anor v Polybuild Technologies International Pty Ltd & Anor

[2015] VSCA 42

Victorian Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Acceptance
4. › Inference from conduct
5. › Absence of clear offer and acceptance
6. › Whether acceptance of offer could be inferred from offeree's conduct including silence
7. › Whether objective bystander would conclude offeree accepted offer
1. Contract
2. › Formation
3. › Inference of contract from circumstances
4. › Manifestation of mutual assent implied from circumstances
5. › Whether contract to be inferred from parties' conduct in commercial dealings
1. Contract
2. › Implied terms
3. › Informal contracts
4. › Whether BP Refinery fivefold test applies in full rigour to informal agreements
5. › Whether term as to commission implied into varied agreement
6. › Commercial setting as guide to implication
7. › BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
8. › Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
1. Statutes
2. › Estate Agents Act 1980 (Vic)
3. › Definition of 'estate agent'
4. › Whether person engaged in single 'one off' transaction is an 'estate agent'
5. › Whether Act directed at ongoing business or isolated transactions
6. › Estate Agents Act 1980 (Vic), ss 4, 50

Quick Take

The BP Refinery fivefold test for implied terms need not be applied in full rigour to informal contractual arrangements not encapsulated in a formal detailed document; instead, inquiries such as whether the term is 'reasonable', 'necessary to give business efficacy', or 'so obvious that it goes without saying' serve as helpful guides. A person engaged for the first time in a single transaction who does not intend to engage in subsequent similar transactions is not an 'estate agent' within the meaning of s 4 of the Estate Agents Act 1980 (Vic) and is not barred from recovering commission by s 50.