King Tide Company Pty Ltd v Arawak Holdings Pty Ltd

[2017] QCA 251

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Formation of contractual relations
3. › Offer and acceptance
4. › Counter-offer
5. › Whether purported acceptance corresponded with terms of counter-offer
6. › Whether silence on critical term constituted acceptance
1. Contract
2. › Formation of contractual relations
3. › Contract implied from conduct of parties
4. › Whether conduct unequivocally pointed to existence of contract in terms alleged
5. › Whether commencement of litigation constituted acceptance or evidence of binding agreement
1. Contract
2. › Formation of contractual relations
3. › Intention to create legal relations
4. › Masters v Cameron categories
5. › Whether parties intended to be bound in advance of formal documentation
1. Appeal
2. › General civil appeal
3. › New arguments on appeal
4. › Whether party may raise for first time on appeal claim not advanced at trial

Quick Take

Where parties are negotiating terms for participation in joint litigation and commence proceedings before reaching final agreement, the commencement of proceedings does not of itself give rise to a binding contract. The conduct must unequivocally point to the existence of the contract in the terms alleged; mere consistency with the alleged agreement is insufficient. Silence on a critical term in a purported acceptance (such as an indemnity demand) cannot be construed as acceptance of that term.