› Implied contract from conduct in absence of express offer and acceptance
Contract
› Formation
› Post-contractual conduct as evidence of agreed essential terms
Damages
› Remoteness
› Contemplation of loss of general kind — no requirement to contemplate particular contractual obligation
Damages
› Apportionment
› Concurrent wrongdoers — Wrongs Act 1958 (Vic) ss 24AH and 24AI
Quick Take
1The observation in P'Auer AG v Polybuild Technologies International Pty Ltd that it is 'rare' to infer a contract absent express offer and acceptance states no legal principle restricting when such inference may be drawn; it reflects only the evidentiary difficulty of establishing mutual assent from conduct alone, and where multiple items of conduct are each consistent with a concluded agreement, the court may consider them in combination to determine whether the parties manifested an objective intention to be bound.
2Whether a party is a 'concurrent wrongdoer' within s 24AH(1) of the Wrongs Act 1958 (Vic) is reviewed on a correctness standard, whereas the apportionment of responsibility between concurrent wrongdoers under s 24AI is reviewed on the House v The King standard, requiring identification of a material error before the appellate court may re-exercise the discretion.
3The remoteness test in contract requires only that loss of the general kind suffered was in the reasonable contemplation of the parties at the time of contracting; it does not require that the particular contractual obligation giving rise to the loss, or the precise mechanism of loss, was itself contemplated.
Case Details
Citation[2026] VSCA 240
CourtVSCA
JurisdictionVictoria
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