The Owners Strata Plan No 76502 v Waterpoint Shepherds Bay Pty Limited [2015] NSWSC 1129

Supreme Court New South Wales

Medium Neutral Citation: The Owners Strata Plan No 76502 v Waterpoint Shepherds Bay Pty Limited [2015] NSWSC 1129 Hearing dates: 7 August 2015 Decision date: 07 August 2015 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Declare that there is a binding agreement to settle litigation. Order defendants to perform. Catchwords: CONTRACT – offer to settle litigation – time – where defendant made a 'walk away' offer, open for 28 days – where that offer accepted on 28th day – whether relevant that time of acceptance was later than time of offer – common law position on taking fractions of days into account

CONTRACT – offer to settle litigation – counter-offers – where, before acceptance, plaintiff inquired of the defendant whether it might be able to get a better offer – whether that inquiry amounted to a counter-offer such that the initial offer was rejected

CONTRACT – offer to settle litigation – where offer stated to be 'on terms requiring each party to pay its own costs of the proceedings' – whether the phrase 'on terms' incorporated an expectation that further terms were to be negotiated – where, after acceptance, defendant sought to require execution of a deed of release – where no mention of such a requirement in initial offer – usual expectation that a competent solicitor will specify in detail the terms on which an offer is made – result that a deed of release was not required Legislation Cited: Interpretation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: La Forrest v Ford [2001] QCA 455 Category: Principal judgment Parties: The Owners – Strata Plan No 76502 (Plaintiff) Waterpoint Shepherds Bay Pty Limited (First Defendant) Billbergia Pty Limited (Second Defendant) Representation: Counsel: J Knackstredt (Plaintiff) J Crittenden (Solicitor) (First and Second Defendants)