Darzi Group Pty Ltd v Nolde Pty Ltd

(2019) 100 NSWLR 394; [2019] NSWCA 210

NSW Court of Appeal

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Interrogate

Catchwords

1. Leases and Tenancies
2. › Agreement for lease
3. › Formation of contract
4. › Whether exchange of correspondence between solicitors gave rise to binding agreement for lease
5. › Parties already in legally binding relationship under Heads of Agreement
6. › Whether intention to be bound before execution and exchange of formal lease document
7. › Retail Leases Act 1994 (NSW), ss 3, 8
1. Contract
2. › Formation
3. › Intention to create legal relations
4. › Objective determination of intention from correspondence
5. › Significance of existing legal relationship between parties
6. › Whether presumption against binding agreement before formal exchange applies to agreements for lease
7. › Masters v Cameron categories
1. Contract
2. › Formation
3. › Without prejudice communications
4. › Whether 'without prejudice' endorsement on correspondence negated intention to be bound
5. › Whether endorsement related to reservation of rights under Retail Leases Act 1994 (NSW) rather than contractual intention
1. Contract
2. › Formation
3. › Subsequent conduct
4. › Relevance of post-contractual conduct to determination of whether contract was formed
5. › Whether subsequent conduct can change the fact of whether a contract was made
6. › Limited admissibility of subsequent conduct

Quick Take

There is no presumption that agreements for lease are not binding until formal exchange of counterparts; where parties are already in a legally binding relationship, the court will be readier to find that correspondence settling remaining terms gives rise to a binding agreement.