Roger Percival Flexman & Anor v Knox Street Apartments & Ors [2004] NSWSC 1154

Roger Percival Flexman & Anor v Knox Street Apartments & Ors [2004] NSWSC 1154

Kimberley extended the time within which its offer could be accepted, and Knox's acceptance on 27 June 2004 did not prevent formation of a settlement agreement. The correspondence and draft consent orders showed consensus and a binding agreement by 8 July 2004 at the latest; later changes were refinements or machinery to give effect to the settlement rather than continued negotiations. The parties' contemplated signatures and filing of formal terms did not make execution a precondition to binding agreement.

Jurisdiction
Australia
Judgment Date
08 December 2004
Procedural Posture
Fourth Cross Claim Seeking Specific Performance of Alleged Agreement to Settle the Second Cross Claim / Separate Hearing
Outcome
Binding agreement reached to settle the Second Cross-Claim; Cross-Claimants to the Fourth Cross-Claim entitled to the orders they seek.
Legal Topics
['condition Precedent' 'contingency' 'settlement Agreement' 'masters V Cameron Categories' 'specific Performance' 'consent Orders']
['contract' 'equity' 'civil Procedure'] ['condition Precedent' 'contingency' 'settlement Agreement' 'masters V Cameron Categories' 'specific Performance' 'consent Orders']

Case Brief

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Procedural Posture

Fourth Cross Claim Seeking Specific Performance of Alleged Agreement to Settle the Second Cross Claim / Separate Hearing

Legal Issues

  1. 1 ['Whether the contingency or condition precedent requiring acceptance by both Knox and the Flexmans by 5:00pm on 25 June 2004 was satisfied or Kimberley extended the time for acceptance.' 'Whether the parties reached a concluded and binding agreement to settle the Second Cross-Claim.' 'Whether the preparation, amendment and proposed execution of formal Consent Orders/Terms of Settlement showed continuing negotiation or merely refinement of an existing agreement.']

Ratio Decidendi

Kimberley extended the time within which its offer could be accepted, and Knox's acceptance on 27 June 2004 did not prevent formation of a settlement agreement. The correspondence and draft consent orders showed consensus and a binding agreement by 8 July 2004 at the latest; later changes were refinements or machinery to give effect to the settlement rather than continued negotiations. The parties' contemplated signatures and filing of formal terms did not make execution a precondition to binding agreement.

Court Disposition

Binding agreement reached to settle the Second Cross-Claim; Cross-Claimants to the Fourth Cross-Claim entitled to the orders they seek.

Orders

  • ['The cross-defendants are to specifically perform and carry into execution the agreement to settle the Second Cross-Claim.' 'The parties are to bring in Short Minutes of Order at 9.30 on 14 December 2004 together with an order for costs.' 'If the parties are unable to agree on a costs order, the Court will hear...