Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313

Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313

No contract came into existence on 24 December 2014 because, objectively assessed in light of the parties' formal prior dealings, the terms of the Proposed Deed, the email correspondence and subsequent conduct, the parties did not intend to be bound until the deed was executed and exchanged. In any event, Mr Gorry had no actual or ostensible authority to bind the appellants: authority to say that Mr Pavlovic would sign did not amount to clear and cogent authority to contract, and the negotiations were not litigation so as to confer ostensible authority on a solicitor to compromise litigation.

Jurisdiction
Australia
Judgment Date
06 October 2015
Procedural Posture
Appeal From Orders Separately Determining Questions Under Uniform Civil Procedure Rules 2005 (nsw), R 28.2 / Court of Appeal
Outcome
Appeal allowed.
Legal Topics
['formation of Contract' 'intention to Be Bound Prior to Execution' 'subsequent Conduct' 'previous Dealings' 'actual Authority of Solicitor' 'ostensible Authority of Solicitor' 'compromise of Potentially Litigious Dispute']
['contracts' 'agency' 'civil Procedure'] ['formation of Contract' 'intention to Be Bound Prior to Execution' 'subsequent Conduct' 'previous Dealings' 'actual Authority of Solicitor' 'ostensible Authority of Solicitor' 'compromise of Potentially Litigious Dispute']

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Procedural Posture

Appeal From Orders Separately Determining Questions Under Uniform Civil Procedure Rules 2005 (nsw), R 28.2 / Court of Appeal

Legal Issues

  1. 1 ['Whether the appellants and Universal, on 24 December 2014, acting through their solicitors, entered into a binding agreement on the terms of the Proposed Deed despite the Proposed Deed not being executed or exchanged.' "Whether each party's solicitors had actual or ostensible authority to enter into an agreement on behalf of their respective clients on 24 December 2014." 'If a binding agreement had been entered into, whether it had been lawfully terminated by the appellants on 23 February 2015.' 'If a binding agreement had been entered into, whether the scope of the orders made by the primary judge was erroneous.']

Ratio Decidendi

No contract came into existence on 24 December 2014 because, objectively assessed in light of the parties' formal prior dealings, the terms of the Proposed Deed, the email correspondence and subsequent conduct, the parties did not intend to be bound until the deed was executed and exchanged. In any event, Mr Gorry had no actual or ostensible authority to bind the appellants: authority to say that Mr Pavlovic would sign did not amount to clear and cogent authority to contract, and the negotiations were not litigation so as to confer ostensible authority on a solicitor to compromise litigation.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed;' 'Set aside declarations and orders made by the primary judge;' 'Declare that no contract came into existence on 24 December 2014 between the appellants and the first and second respondent;' "Order the respondents to pay the appellants' costs of the appeal;" 'Order the respondents to pay the costs...