AUSTRALIAN POSTAL CORPORATION (T/as AUSTRALIA POST) v A J DOWSE and ANOR [1998] NSWCA 24

AUSTRALIAN POSTAL CORPORATION (T/as AUSTRALIA POST) v A J DOWSE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and BEAZLEY JJA and FITZGERALD AJA 24 September 1998, 24 September 1998 [1998] NSWCA 24

CONTRACT — acceptance — party found to have bound itself by its words and conduct.

Fitzgerald AJA This is an appeal from a judgment pronounced in the District Court on 19 June 1997 awarding the respondents $57,877 damages for breach of contract against the appellant and ordering the appellant to pay the respondents' costs.

The single issue raised by the appeal is whether the trial judge correctly concluded that the parties had made contract contended for by the respondents.

On 21 October 1994 the appellant advertised for tenders "under fixed term conditions for the conveyance of mails" over a specified route for a period commencing on 16 November 1994. The advertisement stated that tender forms and full details of the service were available from the Bathurst post office.

The respondents lodged a tender on 28 October 1994. By their tender they undertook:

"\.. to faithfully perform all the requirements of the contract in accordance with the terms and conditions contained in:

¢ this Tender,

¢ the General Conditions of Contract attached,

« the Tenderer's Tender Cost Statement (if lodged), and

¢ The Letter of Acceptance of the Tender and enclosures with the letter."

I should say immediately that I do not accept that, as submitted by the appellant, it could impose any additional terms which it chose by its letter of acceptance, including terms which were inconsistent with the tender.

The respondents were subsequently informed by Mr Brett Corby, the delivery manager at the Bathurst post office, that their tender was unacceptable, and they were invited to submit a revised tender. They did so on 10 November 1994. As required by the tender documents, the respondents nominated a person who would act as their surety if they were awarded the tender.