Sayed v National Australia Bank Limited [2013] NSWCA 304

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sayed v National Australia Bank Limited [2013] NSWCA 304 Hearing dates: 20 August 2013 Decision date: 17 September 2013 Before: McColl JA at [1]; Emmett JA at [2]; Tobias AJA at [75]. Decision: The Court orders that: 1. The appellant be granted leave to file its proposed further amended notice of appeal filed as a draft on 5 August 2013 with the deletion of ground 6. 2. The further amended notice of appeal be filed within 7 days of the date of these orders. 3. The appeal be allowed. 4. The orders made by the primary judge on 22 October 2012 for specific enforcement of the deed of release and settlement attached to an email sent by Ms Danielle Kuti on 30 August 2012 at 1:57pm be set aside. 5. The consent judgment that was entered pursuant to the orders of the primary judge, which was signed on behalf of Mr and Mrs Sayed on 22 October 2012, be set aside. 6. In lieu of the orders of 22 October 2012, the following orders be made: (1) The plaintiff's motion of 5 September 2012 be dismissed. (2) The plaintiff pay the defendant's costs of that motion. 7. The first respondent pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - identification of contract terms - where offers and counter-offers by email, with no final agreement, preceded written "in principle agreement" - where written agreement subject to formal deed that may contain further terms not inconsistent - where written agreement amended to be "binding" - where written agreement made no reference to term providing for mutual release mentioned in email exchange - where written agreement incorporated terms of an email by specific reference - where subsequent deed not executed amidst disagreement as to term of release - whether release term incorporated or to be implied into "in principle agreement" - whether "in principle agreement" not capable of specific performance as an accord executory Legislation Cited: Civil Procedure Act 2005, s 73 Cases Cited: McDermott v Black [1940] HCA 4; (1940) 63 CLR 161 Category: Principal judgment Parties: Bilal Sayed - appellant National Australia Bank Limited - first respondent Nicole Susan Sayed - second respondent Representation: Counsel: Solicitors: