Sayed v National Australia Bank Limited [2013] NSWCA 304

Sayed v National Australia Bank Limited [2013] NSWCA 304

The Court held that the In Principle Agreement was intended to be immediately binding, but its essential terms were set out exhaustively in that document, apart from the email expressly incorporated by clause 6. The prior email negotiations did not incorporate a mutual release term or the broad release in clause 7(a) of the draft deed, and commercial efficacy did not require implying such a term. The parties never reached accord on the deed of settlement and release attached to the Bank's email of 30 August 2012, so that deed was not part of any contractual arrangement and could not be specifically enforced. The primary judge therefore erred in declaring and ordering specific performance...

Jurisdiction
Australia
Judgment Date
17 September 2013
Procedural Posture
Appeal / Appeal From Orders of Rein J Made on 22 October 2012 for Specific Performance of an Alleged Settlement Agreement
Outcome
Appeal allowed; primary judge's orders and consent judgment set aside; Bank's motion dismissed.
Legal Topics
['settlement Agreement' 'identification of Contract Terms' 'offers and Counter Offers by Email' 'in Principle Agreement Subject to Formal Deed' 'incorporation of Terms' 'implied Mutual Release' 'specific Performance' 'accord Executory' 'admission of Late Affidavit Evidence']
['contract' 'civil Procedure' 'equity'] ['settlement Agreement' 'identification of Contract Terms' 'offers and Counter Offers by Email' 'in Principle Agreement Subject to Formal Deed' 'incorporation of Terms' 'implied Mutual Release' 'specific Performance' 'accord Executory' 'admission of Late Affidavit Evidence']

Case Brief

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Procedural Posture

Appeal / Appeal From Orders of Rein J Made on 22 October 2012 for Specific Performance of an Alleged Settlement Agreement

Legal Issues

  1. 1 ['Whether the parties entered into a binding and enforceable settlement agreement when they signed the In Principle Agreement.' 'Whether terms from prior email negotiations, including a requirement for mutual releases or a deed of settlement and release, were incorporated into the In Principle Agreement.' "Whether a term requiring mutual releases should be implied to give commercial efficacy to the parties' arrangements." 'Whether the draft deed of settlement and release attached to the email sent at 1.57pm on 30 August 2012 formed part of any contractual arrangement and could be specifically enforced.' 'Whether the In Principle Agreement was a mere accord executory incapable of specific performance.' 'Whether the primary judge erred in refusing leave to rely on affidavits served on the morning of the hearing.']

Ratio Decidendi

The Court held that the In Principle Agreement was intended to be immediately binding, but its essential terms were set out exhaustively in that document, apart from the email expressly incorporated by clause 6. The prior email negotiations did not incorporate a mutual release term or the broad release in clause 7(a) of the draft deed, and commercial efficacy did not require implying such a term. The parties never reached accord on the deed of settlement and release attached to the Bank's email of 30 August 2012, so that deed was not part of any contractual arrangement and could not be specifically enforced. The primary judge therefore erred in declaring and ordering specific performance...

Court Disposition

Appeal allowed; primary judge's orders and consent judgment set aside; Bank's motion dismissed.

Orders

  • ['The appellant be granted leave to file its proposed further amended notice of appeal filed as a draft on 5 August 2013 with the deletion of ground 6.' 'The further amended notice of appeal be filed within 7 days of the date of these orders.' 'The appeal be allowed.' 'The orders made by the primary judge on 22...