Diver v Object Oriented Pty Ltd and Anor [2002] NSWIRComm 138
Where uncertainty remains as to the essential terms of a proposed agreement, particularly the scope of a non-solicitation clause, and parties are not of a common mind, no binding agreement is formed. The condition pertaining to counsel’s advice was a condition precedent affecting the existence of agreement rather than just its performance.
- Parties
- Applicant: Michael Diver; First Respondent: Object Oriented Pty Limited; Second Respondent: Gerald Patrick Anthony Carroll
- Jurisdiction
- Australia
- Judgment Date
- 20 June 2002
- Procedural Posture
- Interlocutory Motion / Judgment on Notice of Motion
- Outcome
- motion dismissed
- Legal Topics
- Unfair Contract, Settlement Agreements, Conciliation, Binding Contracts
Case Brief
Summary, issues, holding and outcome
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Parties
Michael Diver
Applicant
Object Oriented Pty Limited
First Respondent
Gerald Patrick Anthony Carroll
Second Respondent
Procedural Posture
Interlocutory Motion / Judgment on Notice of Motion
Legal Issues
- 1 whether proceedings were settled in conciliation
- 2 whether an agreement existed in principle, subject to counsel's advice
- 3 nature of the condition (subsequent or precedent) in contract formation
Ratio Decidendi
Where uncertainty remains as to the essential terms of a proposed agreement, particularly the scope of a non-solicitation clause, and parties are not of a common mind, no binding agreement is formed. The condition pertaining to counsel’s advice was a condition precedent affecting the existence of agreement rather than just its performance.
Court Disposition
motion dismissed
Orders
- motion dismissed
- costs reserved
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