Wong v Wong [2022] FCA 78

Federal Court of Australia

Wong v Wong [2022] FCA 78 File number(s): NSD 682 of 2021

Judgment of: HALLEY J

Date of judgment: 8 February 2022

Catchwords: CONTRACTS – interlocutory application to declare a binding and enforceable agreement between applicant and second respondent (Agreement) – where offer provided that bankrupt estate was to receive an amount estimated to be $220,000 by reference to figures in a report to creditors – where acceptance provided that bankrupt estate was to receive $220,000 – whether Agreement binding and enforceable – whether acceptance corresponded with offer or constituted a counter offer – whether material variation –where divergence in expression did not entail a difference in substance – where no material variation – where offer was a purported Calderbank offer – where draft deed of settlement provided subsequent to offer – whether offer was subject to entry into deed of settlement – application granted CONTRACTS – where third respondent opposed the making of a declaration on grounds that it would suffer prejudice and detriment – where third respondent not a party to the Agreement – whether third respondent has sufficient interest in the Agreement to oppose the declaration – where hypothetical prejudice to third respondent not sufficient to preclude making the declaration PRACTICE AND PROCEDURE – whether solicitor for second respondent had authority to accept the offer – where solicitor has actual and ostensible authority where Agreement is actually and genuinely related to litigation

Legislation: Bankruptcy Act 1966 (Cth) ss 58, 82

Cases cited: Ashmere Cove Pty Ltd v Beekink (No 2) (2007) 244 ALR 534; [2007] FCA 1421 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 4 NSWLR 622 Boreland v Docker [2007] NSWCA 94 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Brookfield Australia Investments Ltd v Lucas Stuart Pty Ltd [2012] NSWSC 1130 Calderbank v Calderbank [1975] 3 WLR 586 Clarence City Council v Commonwealth of Australia (2020) 280 FCR 265; [2020] FCAFC 134 Direct Factory Outlets Pty Ltd v Westfield Management Ltd (2003) 132 FCR 428; [2003] FCA 1095 Ex parte Fealey (1897) 18 LR (NSW) 282 Gall v Mitchell (1924) 35 CLR 222 G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Jackson v Turquand (1869) LR 4 HL Lark v Outhwaite [1991] 2 Lloyd's Rep 132 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 Lucke v Cleary (2011) 111 SASR 134; [2011] SASCFC 118 Masters v Cameron (1954) 91 CLR 353 Mulcaire v Newsgroup Newspapers Ltd [2012] Ch 435; [2012] EWHC 3469 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4) (2009) 255 ALR 632; [2009] FCA 522 Outer Suburban Property Ltd v Clarke [1933] SASR 221 Palmer v Ayres (2017) 259 CLR 478 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 Precision Pools Pty Ltd v Commissioner of Taxation (1992) 37 FCR 554 Quadling v Robinson (1976) 137 CLR 192 R A Brierley Investments Limited v Landmark Corporation Limited (1966) 120 CLR 224 Ruhani v Director of Police (2005) 222 CLR 489; [2005] HCA 42