Cleary v Masterton [1999] NSWSC 207

Cleary v Masterton [1999] NSWSC 207

The communications did not establish a concluded settlement contract. The 25 May letter was at best an offer focused on a deed of release and discontinuance; Mr Boyd's 28 May response that his client consented to disposal along the proposed lines was too qualified to be an acceptance, or at most indicated agreement on principal terms only. The subsequent correspondence continued to treat execution of the deed of release as necessary to resolution. The matter therefore fell within the third category of Masters v Cameron, with no contract intended until formalities were completed; alternatively, any settlement was subject to a condition precedent that had not occurred.

Jurisdiction
Australia
Judgment Date
05 March 1999
Procedural Posture
Proceedings for Specific Performance of an Alleged Settlement Agreement / Judgment on Summons
Outcome
Proceedings dismissed with costs.
Legal Topics
['settlement of Litigation' 'specific Performance' 'masters V Cameron Categories' 'deed of Release' 'authority of Solicitor to Settle']
['contract' 'equity' 'civil Procedure'] ['settlement of Litigation' 'specific Performance' 'masters V Cameron Categories' 'deed of Release' 'authority of Solicitor to Settle']

Case Brief

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Procedural Posture

Proceedings for Specific Performance of an Alleged Settlement Agreement / Judgment on Summons

Legal Issues

  1. 1 ['Whether communications between the solicitors created a binding contract settling earlier proceedings against Walsh & Blair.' 'Whether any contemplated deed of release and notice of discontinuance meant there was no contract until formal documentation was executed or delivered.' 'If there was an agreement, whether execution or delivery of settlement documentation was a condition precedent or condition subsequent.']

Ratio Decidendi

The communications did not establish a concluded settlement contract. The 25 May letter was at best an offer focused on a deed of release and discontinuance; Mr Boyd's 28 May response that his client consented to disposal along the proposed lines was too qualified to be an acceptance, or at most indicated agreement on principal terms only. The subsequent correspondence continued to treat execution of the deed of release as necessary to resolution. The matter therefore fell within the third category of Masters v Cameron, with no contract intended until formalities were completed; alternatively, any settlement was subject to a condition precedent that had not occurred.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['The present summons is dismissed with costs.']