The Owners Strata Plan No 76502 v Waterpoint Shepherds Bay Pty Limited [2015] NSWSC 1129

The Owners Strata Plan No 76502 v Waterpoint Shepherds Bay Pty Limited [2015] NSWSC 1129

The plaintiff's acceptance on 1 June 2015 was within time because the 28 day offer remained open until the end of the final full day. The plaintiff's earlier enquiry about whether a different monetary proposal might be available was not a counter-offer and did not reject the defendants' offer. The offer was self-contained, requiring only discontinuance on terms that each party pay its own costs, and did not require execution of a deed of release. A binding settlement agreement was therefore formed on 1 June 2015 and the defendants were required to perform it.

Jurisdiction
Australia
Judgment Date
07 August 2015
Procedural Posture
Contract Dispute Concerning Settlement of Construction Defects Proceedings / Notice of Motion Seeking Declaration and Performance of Settlement Agreement
Outcome
Plaintiff's notice of motion granted; binding settlement agreement declared and defendants ordered to perform.
Legal Topics
['offer and Acceptance' 'settlement of Litigation' 'time for Acceptance of Offer' 'counter Offer' 'notice of Discontinuance' 'costs of Proceedings' 'deed of Release']
['contract Law' 'civil Procedure' 'construction Litigation'] ['offer and Acceptance' 'settlement of Litigation' 'time for Acceptance of Offer' 'counter Offer' 'notice of Discontinuance' 'costs of Proceedings' 'deed of Release']

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Procedural Posture

Contract Dispute Concerning Settlement of Construction Defects Proceedings / Notice of Motion Seeking Declaration and Performance of Settlement Agreement

Legal Issues

  1. 1 ["Whether the defendants' offer to consent to discontinuance on terms that each party pay its own costs was accepted within the 28 day period." "Whether the plaintiff's enquiry about a possible monetary settlement amounted to a counter-offer rejecting the defendants' offer." "Whether the words 'on terms requiring each party to pay its own costs of the proceedings' meant that further terms, including a deed of release, remained to be agreed." 'Whether post-acceptance correspondence concerning a draft deed affected the existence of a binding settlement agreement.']

Ratio Decidendi

The plaintiff's acceptance on 1 June 2015 was within time because the 28 day offer remained open until the end of the final full day. The plaintiff's earlier enquiry about whether a different monetary proposal might be available was not a counter-offer and did not reject the defendants' offer. The offer was self-contained, requiring only discontinuance on terms that each party pay its own costs, and did not require execution of a deed of release. A binding settlement agreement was therefore formed on 1 June 2015 and the defendants were required to perform it.

Court Disposition

Plaintiff's notice of motion granted; binding settlement agreement declared and defendants ordered to perform.

Orders

  • ['Declaration made in terms of prayer 1 of the notice of motion filed on 26 June 2015.' 'Order made in terms of prayer 2 of the notice of motion.' "Defendants directed to execute and return to the plaintiff's solicitors within 14 days a Notice of Discontinuance in the terms of Annexure B to the notice of motion."...