Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 186

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2022] NSWCA 186

The contract was formed on the terms of the Forte Subcontract; after rejecting the Moits Final Tender, Forte made a final offer, which Moits accepted by commencing works. A reasonable person in Forte's position would consider Moits' conduct as acceptance, notwithstanding the lack of a signed document. Post-contract conduct regarding variations was not determinative of the contract terms.

Parties
Appellant: Forte Sydney Construction Pty Ltd; Respondent: N Moit & Sons (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
23 September 2022
Procedural Posture
Appeal / Determination on Appeal
Outcome
Appeal allowed
Legal Topics
Contract Formation, Offer and Acceptance, Acceptance by Conduct, Counter Offer, Construction Contracts, Variation Claims, Retention Amounts
Contract Law Contract Formation Offer and Acceptance Acceptance by Conduct Counter Offer Construction Contracts Variation Claims Retention Amounts

Case Brief

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Parties

Forte Sydney Construction Pty Ltd

Appellant

N Moit & Sons (NSW) Pty Ltd

Respondent

Procedural Posture

Appeal / Determination on Appeal

Legal Issues

  1. 1 Which document formed the contractual basis for works performed: the Forte Subcontract or the Moits Final Tender?
  2. 2 Whether acceptance can be constituted by conduct despite a stipulated manner of acceptance not being followed
  3. 3 Relevance of post-contract conduct and payment of variations to determination of contract terms

Ratio Decidendi

The contract was formed on the terms of the Forte Subcontract; after rejecting the Moits Final Tender, Forte made a final offer, which Moits accepted by commencing works. A reasonable person in Forte's position would consider Moits' conduct as acceptance, notwithstanding the lack of a signed document. Post-contract conduct regarding variations was not determinative of the contract terms.

Court Disposition

Appeal allowed

Orders

  • Orders 1, 2 and 3 made on 14 December 2021 of the court below be set aside.
  • Judgment for the plaintiff on the plaintiff's claim in the sum of $292,833.67.