Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Factory 5 Pty Ltd (In Liq) v State of Victoria (No 2) [2012] FCAFC 150 Citation: Factory 5 Pty Ltd (In Liq) v State of Victoria (No 2) [2012] FCAFC 150
Appeal from: Factory 5 Pty Ltd v State of Victoria [2010] FCA 1229
Parties: FACTORY 5 PTY LTD (IN LIQUIDATION) (ACN 112 313 238) v STATE OF VICTORIA
File number: VID 1046 of 2010
Judges: RARES, FOSTER AND DODDS-STREETON JJ
Date of judgment: 26 October 2012
Catchwords: CONTRACT – formation of contract – whether letter formed a legally binding contract or a mere agreement to agree at some future time, by recording a framework for preparing a long form contract that required further negotiation and agreement – whether the parties reached a contractual consensus on critical terms – where the letter signed by both parties stated that they had agreed that the appellant "is to be appointed" subject to (1) the parties reaching agreement on a legally binding long form agreement; (2) the drafting and provision of the agreement; and (3) the respondent's board approving the terms of that agreement Held: there was no contract between the parties – only an unenforceable agreement of the third class in Masters v Cameron (1954) 91 CLR 353 was reached – an objective bystander would appreciate that at the time the letter was signed, the parties had not yet agreed on all critical terms sufficient to amount to a legally binding contract
Legislation: Commonwealth Games Arrangements Act 2001 (VIC) Trade Practices Act 1974 (Cth) s 47
Cases cited: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 applied Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 referred to Booker Industries Pty Ltd v Wilson Parking (QLD) Pty Ltd (1982) 149 CLR 600 applied Factory 5 Pty Ltd (In Liq) v State of Victoria [2011] FCAFC 77 referred to Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 referred to Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 applied Godecke v Kirwan (1973) 129 CLR 629 referred to GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 referred to Masters v Cameron (1954) 91 CLR 353 applied Meehan v Jones (1982) 149 CLR 571 referred to NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 referred to Thorby v Goldberg (1964) 112 CLR 597 referred to
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