Industrial Relations Commission of New South Wales in Court Session CITATION : Diver v Object Oriented Pty Ltd and Anor [2002] NSWIRComm 138 APPLICANT ON THE MOTION Michael Diver PARTIES : FIRST RESPONDENT ON THE MOTION Object Oriented Pty Limited SECOND RESPONDENT ON THE MOTION Gerald Patrick Anthony Carroll FILE NUMBER: IRC5618 of 2000 CORAM: Peterson J CATCHWORDS : Unfair contract - notice of motion - whether proceedings settled in conciliation - whether agreement existed in principle, subject to counsel's advice - condition subsequent or condition precedent - difficulty attaching a label to element of negotiations as constituting a condition - unclear whether clause was to include contractors - real aspect of uncertainty in position between parties - clause essential term of proposed agreement - held no binding agreement - motion dismissed - costs reserved. LEGISLATION CITED : Industrial Relations Act 1996 s106 Masters v Cameron (1954) 91 CLR 353 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd and ors (1996) 40 NSWLR 622 Dr Payne v University of Sydney and Anor [2000] NSWIRComm 102, unreported. CASES CITED : Peter Smarzak v Grimes Management Services Pty Ltd [2000] IRComm 73, unreported. William Fowler v The London Clearing House Limited and ICCH Financial Markets Australia Limited [1997] NSWIRComm 87, unreported. Perri and Anor v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Two Lands Services Pty Ltd & 1 Ors v Gregory Robert Cave [2000] NSWSC 14, unreported. HEARING DATES: 02/26/2002 DATE OF JUDGMENT: 06/20/2002 APPLICANT ON THE MOTION Mr P C Coleman of counsel SOLICITOR Carroll & Associates SYDNEY. LEGAL REPRESENTATIVES: RESPONDENTS ON THE MOTION Mr C T Magee of counsel SOLICITOR Cowley Hearne NORTH SYDNEY. JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 20 JUNE 2002 Matter No IRC5618 of 2000 MICHAEL DIVER v OBJECT ORIENTED PTY LIMITED AND ANOTHER Application under s.106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 The applicant in these proceedings, which were brought under s106 of the Industrial Relations Act 1996 ("the Act"), seeks by notice of motion a declaration that the substantive proceedings were settled on 27 August 2001 in conciliation proceedings before Kavanagh J, on terms orally agreed on that date and later summarised in the letter from the applicant's solicitor to the respondent's solicitor dated 11 September 2001 (which is annexure "C" to the affidavit of Peta Carroll sworn on 30 October 2001). The respondents dispute that there was an agreement reached at the date alleged or at any other time. 2 The relevant facts have been identified by uncontested affidavit evidence filed by both parties. While there are some subtle differences in that material, in substance they are consistent, subject to one area of significance about which there was no conflict cross-examination of any deponent. 3 The matter was the subject of a conciliation conference pursuant to s109 of the Act before Kavanagh J on 17 August 2001. The applicant was represented by Mr Phillip Coleman of counsel and the respondents by Mr Fernon of counsel. It did not settle but was stood over for further settlement discussions between the parties; it was listed for report back on 27 August 2001. On that day Kavanagh J stood the matter in the list and directed the parties to enter into further private discussions. The applicant was then represented by Ms Peta Carroll of Carroll & Associates, solicitors, and the respondent by Mr Peter Rose of Cowley Hearne, Solicitors. 4 The affidavit evidence of Ms Carroll, Mr Rose and Mr Andrew Wood, Chief Financial Officer of the first respondent deals with the discussions between the parties on 27 August 2001 in the nature of offers and counter offers which were then made. I extract the following from Ms Carroll's affidavit sworn 30 October 2001: Ms. Carroll: "The Applicant believes his claim is worth more but is willing to split the difference and settle for $70,000 comprised of $54,000 as a redundancy and $16,000 for legal costs." Mr Rose then said words to the effect: "I don't know whether we can get there. I'll need to get instructions by placing another call. But there would have to be a Deed of Release of course." I agreed and left the room for him to gain instructions. Shortly after Mr Rose said to me words to the effect: "My client has agreed to split the difference and accept $70,000 on the basis that your client executes a Deed of Release with respect to confidentiality, non-disparagement, and a non-solicitation of employees clause and payment 28 days from execution of the Deed of Release." I then said: "Look as long as the Deed is mutual it shouldn't be a problem but I don't think he will agree to a non-solicitation clause." Mr Wood then said to me words to the effect: "We want your client to agree to this clause because he's done it before we want a non-solicitation clause that your client can't personally solicit employees including contractors for 12 months from the date of this Deed." I then said words to the effect: "I'll have to get instructions." I then telephoned the Applicant to obtain instructions. I then returned to the room where Mr Rose and Mr Wood were located and said words to the effect: "The Deed will need to be mutual. As long as the Deed doesn't take too long to get to us for signing he will agree to payment within 28 days from execution. My client will not agree to the non-solicitation clause suggested by you, he has not worked for your company for nearly 12 months. Subject to advice from counsel about the ramifications of such a clause he would only be willing to have a non-solicitation period for 3 months from today's date." At this point Mr Wood said words to the effect: "I will agree to restrict the period to 1 January 2002." I then telephoned the Applicant for instructions again. I then returned and said words to the effect: "I need counsel to give advice on this and I can't get a hold of him. My client won't agree to include contractors in the non-solicitation clause and he will only agree to personally not solicit employees of the Respondent to 1 January 2002 but I stress that we want counsel to give advice on this before we agree on the clause. You get me the clause and we'll have a look at it from there." Mr Rose then said words to the effect: "So we have an agreement in principle in relation to the non-solicitation clause subject to you getting advice from counsel." I then said: "Great, I look forward to getting the draft deed. We should go and tell the Judge that we have settled subject to advice on the non-solicitation clause and get the matter stood over." 5 The parties then entered Kavanagh J's court to inform her Honour of the position but she was engaged in another matter and the representatives of the parties spoke with the associate to Kavanagh J outside the court and obtained a mention date in three weeks' time. 6 On 29 August Ms Carroll directed her secretary to ring Mr Rose to request the draft deed of release. Contact was made with Mr Rose's secretary. On 30 August 2001 Ms Carroll again sought her secretary to leave a message for Mr Rose requesting the draft deed. This occurred again on 31 August 2001 at which time, according to a file note made by Ms Carroll's secretary, Mr Rose indicated that he had a few problems for which he had to wait for instructions from his client before corresponding with Ms Carroll and before sending a draft deed. He was hoping to get instructions that day or the latest on the following Monday. 7 On that date, 31 August 2001, Mr Rose wrote to Carroll & Associates in the following terms: We refer to our settlement negotiations entered into on 27 August 2001 arising from discussions, instigated by directions of Her Honour Justice Kavanagh. You will recall that those negotiations culminated an arrangement by the parties, subject to documentation, to settle the matter. We regret that our client will not be pursuing that arrangement any further. The reason is that our client instructs us that in entering into that arrangement it was induced by your clients' representation to both the court and our client that he was unemployed for a period of two to three months following the date of termination of employment with our client. It has since come to our client's attention that that representation was false and that your client's period of unemployment was actually one month. In the event that you are able to forward evidence to support your client's assertion of two to three months unemployment, we will seek confirmation of our client's instructions. Otherwise, we are instructed that our client's Chief Executive Officer is prepared to approach Justice Kavanagh on or before 17 September 2001 to confirm this position and outline his understanding of the misrepresentation to the court and the Respondent. We are also instructed to notify the court of our client's position in coming to this decision prior to the report back to the court set down for 17 September 2001. 8 On 11 September 2001 Ms Carroll responded to that letter as follows: We refer to the abovementioned and to your correspondence dated 31 August 2001, but not faxed to this office until 5 September 2001. Firstly we note that the agreement by the parties on 27 August 2001 was as follows: 1. Respondent to pay the Applicant $70,000. 2. Payment to be made within 28 days of execution of a Deed of Release. 3. A Deed of Release to be executed by the parties to include a mutual confidentiality and non-disparagement clause as well as a non-solicitation clause to the effect that the Applicant not personally solicit employees of the Respondent to 1 January 2002. 4. Settlement conditional upon advice of the Applicant's counsel regarding the terms of the non-solicitation clause. We note the contents of your said correspondence and reject your contention that there was any false representation made to your client or that your client was induced to enter the agreement reached on 27 August 2001 on the facts alleged. We note that at the Conciliation of this matter on 17 August 2001, the Applicant's counsel stated in response to a question from Her Honour that the period of unemployment was in the order of approximately 2-3 months. We note that when a direction was made by Her Honour Kavanagh J that the parties enter into off the record settlement discussions, your counsel Mr Fernon requested that Mr Coleman, the Applicant's counsel, ascertain the date that the Applicant commenced employment following his termination of employment with the Respondents. Mr Coleman accordingly obtained instructions from our client and we are instructed that he said to Mr Fernon words to the effect "We don't have a precise date, it's more like 6 weeks to 2 months." We note that our client's employment was terminated by the Second Respondent on 4 September 2000 and are further instructed that he commenced employment with his current employer on 16 October 2000 which equates to 6 weeks. Accordingly, you have no basis to allege any false representation. Therefore your clients have no basis on which to rescind the settlement agreement reached. We are instructed to require you to adhere to the terms of the agreement reached. We look forward to receiving the Deed of Release as agreed. Failing receipt of same we put you on notice that any proceedings your clients bring to set aside the settlement agreement reached, will be defended for which our client will seek an order for payment of his costs by your clients. 9 On the 17 September 2001 Mr Rose communicated to Ms Carroll words to the effect: "Our counsel agrees with your counsel's recollection of events. However my clients have other concerns besides the date that he started." 10 On 3 October 2001 matter was mentioned again before Kavanagh J. After off the record discussions Her Honour recorded that there had been a "collapse of an agreed settlement" and that the matter would be referred to the President for allocation for hearing. On 4 October 2001 Kavanagh J issued a certificate of unsuccessful conciliation: s109(2). 11 Mr Coleman for the applicant submits the present case is one which comes within the scope of the first class of case, where parties are agreed to terms of settlement but require the agreement to be formalised, as described by the High Court in Masters v Cameron (1954) 91 CLR 353. He submits that the agreement was one which contained a condition subsequent, namely the agreement to the non-solicitation clause subject to counsel's advice, causing the agreement to be one which was legally binding although not enforceable pending the satisfaction of the condition subsequent; the circumstances gave the applicant an opportunity to withdraw, were he to receive advice to cause that result. No opportunity was given to the respondent to withdraw and on the satisfaction of the condition subsequent the applicant became entitled to the benefit of the completed agreement. 12 Mr Coleman drew an analogy with the case of a purchaser of a car reaching agreement with the vendor on all terms but reserving its position to be subject to the arranging of finance. It was submitted that in the event that finance was arranged, the vendor would not be able to withdraw from the agreement but the purchaser could withdraw if he failed to obtain finance. Mr Magee, counsel for the respondents, argued in that respect that the reservation subject to finance was a term of the agreement. Mr Magee argued that in the present matter the agreement to the non-solicitation clause was a condition in respect of the making of the agreement not simply its performance; it was a condition precedent for entering into the agreement. There was no binding agreement with a condition subsequent. 13 Mr Magee argued that the facts in the matter demonstrated that there was no agreement at the time although there was an anticipation that agreement might follow. He relied upon the language employed by Ms Carroll in her reservations about the matter, despite Mr Rose's observation that the parties had agreed in principle. Deliberation 14 In Masters v Cameron the High Court, comprising Dixon CJ, McTiernan and Kitto JJ at 360 dealt with the categories of case which arise where parties have reached agreement in negotiations and intend that the agreed terms will be later formalised. The Court said: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common. . . . . … …Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own: Governor &c. of the Poor of Kingston-upon-Hull v Petch (1854) 10 Exch.610 [156 E.R 583]. The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document, as in Summer-greene v Parker (1950) 80 CLR 304 or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed. . . . . So, as Parker J. said in Von Hatzfeldt-Wildenburg v Alexander (1912) 1 Ch. 284, at p.289, in such a case there is no enforceable contract, either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. The question depends upon the intention disclosed by the language the parties have employed, and no special form of words is essential to be used in order that there shall be no contract binding upon the parties before the execution of their agreement in its ultimate shape : Farmer v. Honan (1919) 26 CLR 183. Nor is any formula, such as "subject to contract", so intractable as always and necessarily to produce that result : cf. Filby v. Hounsell (1896) 2 Ch. 737. But the natural sense of such words was shown by the language of Lord Westbury when he said in Chinnock v. Marchioness of Ely (1865) 4 De. G. J. & S. 638 [46 E.R. 1066] : "if to a proposal or offer an assent be given subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of that stipulation" (1865) 4 De G. J. & S. 638 at p.646 [46 E.R., at p.1069]. Again, Sir George Jessel M.R. said in Crossley v. Maycock (1874) L.R. 18 Eq. 180 : "if the agreement is made subject to certain conditions then specified or to be specified by the party making it, or by his solicitor, then, until those conditions are accepted, there is no final agreement such as the Court will enforce" (1874) L.R. 18 Eq., at pp.181, 182. 15 These three classes of case have been extended by a fourth class identified by McLelland J. in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd and others (1996) 40 NSWLR 622. In that matter the plaintiff had offered to purchase a private hospital at a particular price, the offer being conditional upon four matters identified in the offer. The offer contained the following sentence: In order to accept this offer, I would appreciate your written response by that time and would expect that it would constitute a legally binding acceptance until such time as it is superceded (sic) by a formally binding agreement. Solicitors for the defendant wrote accepting that offer subject to the imposition of a further series of conditions, the ninth of which was as follows: 9. Your written acceptance of these additional conditions by us by 3.00pm on Tuesday, 25 inst. On receipt of such written acceptance, our client would consider there to be a legally binding agreement in principle between yourself and it, until such time as formal Contracts were exchanged as aforesaid. The plaintiff then responded accepting the terms and conditions offered by the defendant. It was noted that the plaintiff's solicitors would be in contact concerning the formal contract. 16 I extract the following from the judgment of McLelland J: Was there a binding contract? There was a binding contract, if, and only if, by the exchange of letters the parties mutually communicated their respective assents to being legally bound by terms capable of having contractual effect: see the discussions in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 at 9254ff and Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309. In the last-mentioned case Mahoney JA (at 326) identified three questions which it is often useful to consider in such a context as the present, namely " … did the parties arrive at a consensus?; (if they did) was it such a consensus as was capable of forming a binding contract?; and (if it was) did the parties intend that the consensus at which they arrived should constitute a binding contract?" The answer to the first of these questions is obviously in the affirmative in the present case. The letters comprise offer, counter-offer, and acceptance, and manifest a clear consensus between the parties. The answers to the second and third questions are not so obvious. One element of the terms of the consensus is important in relation to both these questions and may be conveniently dealt with separately. "…legally binding agreement in principle …" This phrase, occurring as it does in the letter of 21 March 1986, and tacitly adopted by the letter of 25 March 1986, was clearly part of the consensus. It was submitted on behalf of the defendants that it signified that although agreement had been reached on some terms, agreement had yet to be reached on others, from which it followed: (1) that regarded as an "agreement to agree" on those terms, the consensus was incapable of forming a binding contract; and (2) that the parties could not have intended to be legally bound prior to agreement being reached on those other terms. So far as the first of these matters is concerned, I do not accept that the words "agreement in principle" in the present context import the idea that there must necessarily be agreement on further terms to be embodied in the "formal contract" provided for in the consensus, as opposed to an expectation that there would or might be agreement on further terms to be so embodied. In other words, I do not consider that the phrase in question should be construed as an "agreement to agree" on further terms, but rather as an indication, at the most, of an expectation of agreement on further terms. So far as the second matter is concerned, I do not consider that any implication of an intention not to be legally bound which might otherwise be suggested by the words "agreement in principle" can prevail over the clear import of the words "legally binding". The intention of the parties to be legally bound by their consensus is sufficiently clearly expressed to take the case out of the third class of cases referred to in Masters v Cameron (1954) 91 CLR 353 at 360-362, that is, " … cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own" (at 361). There is in reality a fourth class of case additional to the three mentioned in Masters v Cameron , as recognised by Knox CJ, Rich J and Dixon J, in Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 at 317, namely, "… one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms". Their Honours refer to the speech of Lord Loreburn, in Love & Stewart v S Instone & Co (1917) 33 TLR 475 at 476, where his Lordship said that: "It was quite lawful to make a bargain containing certain terms which one was content with, dealing with what one regarded as essentials, and at the same time to say that one would have a formal document drawn up with the full expectation that one would by consent insert in it a number of further terms. If that were the intention of the parties, then a bargain had been made, none the less that both parties felt quite sure that the formal document could comprise more than was contained in the preliminary bargain." It seems to me that subject to the matters yet to be considered the present case falls into this fourth class as described in Sinclair, Scott & Co v Naughton . 17 From these authorities then, the four identifiable classes of case are as follow: 1. Agreed terms - intention to be immediately bound to perform - terms to be restated in fuller or more precise form but not different effect; 2. Agreed terms - no departure intended but performance conditional upon execution of a formal document; 3. Intention not to make a concluded bargain unless and until a formal contract is executed; and 4. Intention to be immediately bound by the agreed terms while expecting to make a further contract in substitution for the first contract containing, by consent, additional terms. 18 It is clear from facts of the matter, and indeed not disputed by the respondents, that they took the view that they should not persist with the offer finally made to the applicant for reasons for which have not been fully elaborated upon in hearing the motion. However, to the limited extent to which reference was made to a misrepresentation by the applicant, to the effect he had misrepresented the extent of his period of unemployment, the evidence is all in the applicant's favour; no such misrepresentation occurred. The critical question is whether or not the position reached between the parties on the 27 August 2001 was one in which, until the receipt of counsel's advice and the communication sent to the respondents re the non-solicitation clause requirements, the respondents were free to withdraw from or whether they were bound by a pre-existing agreement complete save in the sense that it contained the alleged condition subsequent. 19 Counsel referred to three judgments of single members of the Commission in Court Session, each holding that an enforceable agreement had been reached in the conciliation process. In each matter the principles referred to in Masters v Cameron were applied. The first case was Dr Payne v University of Sydney and Anor [2000] NSWIRComm 102 per Schmidt J (unreported). In that matter a settlement was reached in conciliation and reported to the Commission. The parties intended to execute a deed to formalise and complete the agreement. The deed was prepared but never executed, the applicant seeking to avoid the agreement. A legally binding agreement was held to have been reached. 20 In Peter Smarzak v Grimes Management Services Pty Ltd (Maidment J, [2000] IRComm 73, 12 May 2000, unreported) the solicitors on both sides had agreed to terms of settlement but the applicant subsequently sought to retain other solicitors, seemingly to avoid having to pay his solicitors legal costs, which were provided by the deed to be payable directly. The respondent also sought to avoid the agreement on the basis of misrepresentation, which they claim would have justified a rescission of the agreement to settle. Maidment J was not prepared to accept there had been a misrepresentation sufficient to allow that withdrawal and held that the parties had entered into a binding agreement. 21 In William Fowler v The London Clearing House Limited and ICCH Financial Markets Australia Limited (NSWIRComm 87, 4 August 1997, unreported) Marks J considered an agreement reached between solicitors as to all of its terms which were reflected in correspondence between the parties. Subsequently the applicant sought to vary and add additional terms which were not accepted. The applicant's attempt to avoid the agreement was held to be ineffective and the parties were bound by the terms of the agreement. 22 In Perri and Anor v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 542 Gibbs CJ referred to the difficulties in ascribing a description to a condition precedent/subsequent, citing firstly the judgment of the High Court in Maynard v Goode (1926) 37 CLR 529 as follows: However, as Isaacs J. pointed out ((1926) 37 CLR at 540), in one sense the stipulation might be a condition precedent to the performance of a particular term of the contract, while in another sense it was a condition subsequent in relation to the whole contract, since the failure of the stipulation would have entitled the vendor to retire from the transaction altogether. There are other authorities which illustrate the difficulty of attaching a label to conditions of this kind. In Zieme v Gregory ([1963] VR 214) and Tait v Bonnice ([1975] VR 102) conditions making the contract conditional upon the purchaser obtaining a loan were held to be conditions subsequent, whereas in Scott v Rania ([1966] NZLR 527) a similar condition was held to be a condition precedent to the formation of a binding contract. The latter case accepted the view taken in Aberfoyle Plantations Ltd v Cheng that no binding contract came into existence until the condition was fulfilled. That view must, as I have indicated, depend on particular terms of the contract; on the other hand, the description of the condition as a condition subsequent may be a mere matter of terminology, and may reflect an unwillingness to describe a condition as a condition precedent unless the formation of a binding contract depends on its fulfilment. Nevertheless, it probably does not matter in the present case whether the condition is described as "precedent" or "subsequent", provided that it is understood that its non-fulfilment did not prevent a binding contract from coming into existence but did have the effect that the respondent was under no obligation to complete the sale unless the condition was fulfilled or waived. 23 The present case is another illustration of the difficulty of attaching a label to an element of the negotiations constituting a condition. 24 There is one dispute in the evidence which is of significance. Ms Carroll suggests agreement was reached on a non-solicitation clause covering only employees of the first respondent, and not contractors. Mr Rose and Mr Wood depose that the clause was to be of the "Two Lands" type (a reference to a matter decided by Santow J in Two Lands Services Pty. Ltd. & 1 Ors v Gregory Robert Cave [2000] NSWSC 14, unreported which would extend in this context to both employees, and contractors. The need for counsel's advice, on their understanding, was in the context of the "Two Lands principle", not simply non-solicitation of employees. 25 I find myself on the balance of the evidence unable to resolve this conflict, in the applicant's favour, by finding the first respondent had agreed to forego a restriction as to contractors. That position seems to me consistent also with the idea that the respondents should draft the clause so that the applicant would be able to review and receive advice on its ramifications. 26 Thus, at the stage of progress in the negotiations when the respondents chose to withdraw, there was a real aspect of uncertainty in the position as between the parties, an element which Mr Magee relied on. That uncertainty, namely, as to what was being discussed in respect of non-solicitation, means there was no complete agreement subject to the applicant's acceptance. The factual dispute demonstrates the parties were not of a common mind as to the content of the clause which was to be considered. 27 In these circumstances, I am unable to find the parties had agreed to terms which were to be acceptable solely at the applicant's behest. The feature described as a condition was more in the nature of a condition precedent to agreement than a condition subsequent. It was an essential term of the proposed agreement and a term which had not been formulated. It could not be a matter affecting only performance; it went to the very existence of an agreement. 28 This contrasts markedly with the position reached in the three cases decided in the Commission, to which reference has been made. It also fails to meet the test as put by Gibbs CJ in Perri: ". . . its non-fulfilment did not prevent a binding contract from coming into existence . . .". 29 It follows that the motion must be dismissed. I so order. The applicant requested that I reserve the claim for orders in par. 2 of the motion. These appear contingent on success on the issues against which I have ruled and would also seem to warrant dismissal. In the absence of contrary advice within seven days those claims will be dismissed. I reserve costs on the motion. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.