Annie- Jennifer- Offer and Acceptance- Consideration- Estoppel The dispute between Annie and Jen in effect begins

with the question is there a contract in place. To begin with the conventional offer and acceptance approach will be analysed and further on a discussion on the global approach will conclude. An offer is defined as a statement of the terms in which the offeror is prepared to bound if acceptance of the is communicated whilst still alive-Nielsen v Dysart[2009] 3 NZLR 160 at 168 and that it is clear, definite and leaves nothing open for negotiation -Lefkowitz v Great Minneapolis Surplus Store 86 NW 2d 689(1957) In Harvey V Facey [1893] AC 552 the judgement was noted that it was in fact not an offer but more a supply of information. The mere statement of the lowest price at which the vendor would sell contains no implied contract In Pattinson V Mann(1975) 13 SASR 34 at 37 a statement which did not contain a reference to matters which one would normally expect to be the subject of negotiation is an indication that no concluded agreement would be reached by a purported accepted of such a statement. Turner Kempson & Co Pty Ltd v Camm [1922] VLR 498 An acceptance has to have the character of being unequivocal and that there is nothing left to be negotiated A global approach is sometimes applied where no agreement arises by conventional analysis into offer and acceptance. In Integrated Computer Services v Digital - sometimes it is hard to determine especially where there is an ongoing relationship where there is actually a offer and acceptance may not be easy to identify any particular moment of offer and acceptance see e.g. Integrated Computer Services V Digital Equipment Corp(Aust) Pty Ltd(1988) 5 BPR 11,117-8 The conduct must not only be consistent with the contract, it must be capable of proving the essential elements of a contract Additionally one can infer the fact of acceptance from conduct Empirnall Holdings v Machon Paull Partners. The conduct must not only be consistent with the contract, it must be capable of proving the essential elements of a contract Integrated Computers. The Bell Group V Westpac Banking Corp at 315- to search for the object intention of each party to be inferred from its communications and conduct. Further the court may ask whether it can be stated with confidence that by a certain point the parties had by their conduct manifest a sufficiently clear intention to make a contract intended to be binding see Branir Pty. Ltd.V Owston Nominees Pty LTD (2001)117 FCR 424-425 It is noted in particular that for a contract to be brought into existence by conduct, the evidence of such intention must be clear. Inferring the existence of a contract is not easily achieved Australian Energy Ltd V Lennard Oil NL[1986] 2 Qd R216 at 237 It is also said that common sense would indicate that it was inherently improbable that the parties ever intended to be bound to a substantial transaction without documenting their transaction in a written agreement see Jago V Coastalwatch Pty Limited [2009]

NSWSC 594

The casual statement made by Annie are you interested in taking over the shop?does not have the clarity of an offer that someone would put in place if handing over their business. There is a lack of dates for the period in which the agreement would last. When Jen asked for more detail in regards to some pertinent information that would be required to run the shop, Annies response you just run the shop anyway you want sweetie all points to a lack the clarity is described in Lefkowitz and Pattison. Further to that the statement You can keep all the profits for the year lacks the detail one would expect when making such arrangements. What were the contingencies if there was a loss? Would Annie pay for it? Would Jen be liable? These critical points that one would normally discuss in an offer were not discussed. This is more similar to Harvey where Annie was supplying the information. On those facts it is not likely that an offer and acceptance was reached. If however it was deemed that what Annie said did constitute an offer which is not likely, was there acceptance of the offer? Jen used the term give it a punt in relation to acceptance of the offer. This would be deemed vague and not unequivocal.There was still much to be negotiated in relation to the agreement supported by the judgement in Turner. Jens situation does not fully satisfy the conventional approach to to offer and acceptance. If however the Global approach is used where an agreement is determined in lack of the usual offer and acceptance. Implied acceptance however be seen in Jens conduct inasmuch as she went to work early and came in on non -rostered days. Would a reasonable person infer from the conduct of both Jen and Annie that an agreement was in place, as in Bell. Objectively a person would not normally come in on their days off and work for no money. Conversely the owner would not expect that staff would come into work for no money. Annie as owner could not expect her staff not to be paid if they ran the store and she did not come in or came in late. This conduct would infer that she knew that Jen was acting in such a way as she believed that the agreement was going ahead. This can be seen in the judgements in Empirall and Integrated Services. The action of Annie not opening the shop and letting Jen open it and turning up later would conclude that certain point discussed in Branir had been reached. To take the opposite approach as in Jago the courts would have to determine that it would it would be extremely unlikely in the events of the passing over of a business in which Annie relies on would not have a written contract to stipulate every detail. The result in the courts based on the above would be that there is an agreement in which Annie made an offer and Jen accepted. In saying this consideration has not been discussed and would be the crucial part in deciding whether in fact their is an actual agreement.

Consideration as defined by in Balfour v Balfour [1919] 2KB 571 at 578 is either some right, interest, profit or benefit accruing to one party, or some forbearance, detriment loss or responsibility given, suffered or undertaken by the other. Rann v Hughes (1778) in a simple contract consideration must be present. Thomas v Thomas Consideration need not be adequate but sufficient. Dunlop Pneumatic Tyre Company V Selfridge & Company - Only the party providing consideration can enforce a promise. Australian Woollen Mills v The Commonwealth (1954) 92 CLR424 - Consideration must be bargained for. Carhill V Carbolic Smoke Ball Co[1893]- Inconvenience sustained by one party is enough to provide consideration. In Placer Developments v The Commonwealth (1969) 121 CLR 353 at 356 a ruling was made that the Promise made by the promisor cannot be accompanied by words that are discretion. In this case Jen provided consideration by the benefit accruing to Annie by working the extra hours and allowing Annie to have time off as in Balfour. Jen also suffered detriment as she also worked extra hours with Annie and did not receive remuneration. This would illustrate that a contract did exist as in Rann. The running of the store could be result in a very small profit for the amount of work that Jen puts in however this bears no relevance as in Thomas. Jen can enforce Annies promise as she is providing the consideration as in Dunlop. Jen suffered inconvenience from Annie and as in Carhill this can be enough for consideration to support the promise. In a separate approach one could describe Annies offer as one presupposed on her ability to go on holidays. This could be as in Placer be described as illusory and thus the promise of consideration may not be supported by consideration as it was at Annies discretion to go on holidays or not. On balance of the above Courts would therefore infer based on the above that the promise by Annie to Jen was supported by consideration. On this basis the courts could in this case decide that the offer was made by Annie to Jen, due to the rules outlined above. The offer was accepted by Jen using the rules of the Global Approach and the promises were supported by consideration. On the other hand if the courts did decide that there was sufficient ambiguousness in the offer and acceptance and that the consideration was Illusory then Jen may have the opportunity of claiming Equitable Estoppel.

Estoppel Can Jen make a claim supported by equitable estoppel? There needs to a be a promise or a sufficiently clear and unambiguous representation. Australian Crime Commission v Gray[2003] NSWCA 318 In Thorner v Major [2009]3 All ER 945 the ruling was that although the statement should be clear and unambiguous it should also be looked at from what the person invoking the estoppel would understood the statement that he would rely. Cobbe V Yeoman s Row Management [2008] 1 WLR 1752-Businessmen having concluded a successful negotiation, is not an interest to ground a claim of equitable estoppel. Accurate Financial Services V Koko Black Pty Ltd [2008] VSCA 86 - how would it be reasonably understood by the addressee in the context of the surrounding circumstances. In Walton Stores v Maher(1988) 164 CLR 387;76 ALR513 there were certain criteria that Brennan J set out that could clearly establish if there was a case for equitable estoppel. There needs to be a sufficiently clear and unambiguous representation concerning the fact of an enforceable obligation. Mobil Oil Australia V Lyndel Nominees Pty Ltd(1998) 153 ALR 198- It is a necessary element that the representor created or encouraged the assumption would arise or be granted. Commonwealth v Verwayen (1990) 170 CLR 394 the other party laboured under the assumption and refrained from correction them. Hawker Paciifc v Helicopter Charter (1991) 22 NSWLR 298-The detriment must constitute a material detriment, or a material or significant disadvantage Vella v Wah Lai Investment[2004} NSWSC 748-It is incumbent upon the representor to advise the relying party that the assumption is mistaken before detriment has been incurred Giumelli v Giumelli (1999) CLR 121- relief was based on expectation of the representation and not the representation itself.

The statement by Jen its your baby for that time ...I dont know and I really dont care how you are going to run the shop Would presume that as in Australian Crime Commission that there is a clear unambiguous representation. In Thorner V Major the relationship between Jen and Annie would be one of a family relationship and hence the remarks can be oblique and would not need the same clarity of businessmen. This can be illustrated in Jens reply I will give it a punt

On the other hand using Cobbe, Annie and Jens negotiations would not have certainty on the basis of equitable estoppel. Annie being a close family friend would more lean towards the Thorner judgement and hence there was a clear and unambiguous statement that showed a enforceable obligation that was yet to be executed. The ingredients of equitable estoppel were set out in Walton Stores by His Honour Brennan J as follows: Requirement One; the assumption or expectation of a legal relationship this requirement is satisfied by the statement that it was a I think I will give it a punt and Its your baby for that time...If you need to hire someone else....If you need to buy more stock ...I dont know and I really do not care how you run it Requirement Two: an inducement to adopt the assumption Annie induced Jen to adopt the assumption by allowing Jen to go to work extra hours without payment. This would cement the assumption by Annie that there was a agreement. Requirement Three: acting or abstaining from acting in reliance on the assumption From Jens view she would only have come in and worked those extra hours under the assumption she was being groomed to run the store. She acted in reliance on the the assumption that there was an agreement. Requirement Four: knowledge that that the representee will rely on the assumption . As In Walton Stores Annie encouraged Jen to think that the agreement was in place by not paying her for the extra hours worked. The contrary view suggested in Verwayen is that the Annie should not ought to have know but actually known. Annie satisfies both decisions. Annie not turning up for work or going home early on days when Jen was not rostered to work illustrates this. Requirement five: the action or inaction will occasion detriment if the assumption is unfulfilled. Jens detriment was the loss of wages and her $6000 pie invoice this is supported byHawker Pacific Requirement six: failure to avoid detriment. Annie was aware of the fact that Jen was coming in and not getting paid for it. As In Vella her absence in opening the store supports her knowledge of Jen working those days. Annies prior arrangement with Jen purchasing the pies and then her statement if you need to buy more stock you just do it. would suggest that the normal arrangement of Jen ordering has been satisfied. As in Mobil Annie created and encouraged an assumption would arise or be granted. Relief Assuming that the requirements of estoppel are satisfied, the next issue is as to the extent of the relief based on the above. The purpose of relief based on estoppel is to relieve against detriment and not to make good an expectation - 32.44 text. The relief is not based on there being a promise, but rather the expectation that the promise or representation generated Giumellii There needs to be proportionality between the relief ordered and the detriment suffered. The court would order that Annie compensate Jen for all unpaid hours that she worked. The court also would be inclined to have Annie pay for the pies as this again was enacted because of the understanding Jen would run the store anyway she saw fit. The relief would

be based on what detriment Jen suffered in relation to the promise of running the shop.

Is Jen liable to Jill The issue is there contract between Jill and Jen. Nielsen v Dysart,Balfour v Balfour,Placer Pacific Ajayi v R t Brisoce (Nigeria)Ltd [1964]3 A11 ER 556 at 559 Financing Ltd v Stimson; Nielson Dysart - where an offer expressly indicates the relevant state of affairs. The offer lapses once that state of affairs cease to exist. Using the definition from Nielsen Jen was willing to be bound by the statement. As far as I am concerned you will work for me for 5 days and Sat mornings as week and your wage will be 900 Jill was delighted and accepted. Acceptance was expressed as in Empirnall. If the offer did still stand consideration or the promise would need to be supported. This is in effect is a unilateral contract where as Jen will pay Jill once she works her hours and Jills consideration is executed. Using the Balfour definition Jen stands to benefit from the Jill working more hours and Jen has promised to pay Jill $900. The consideration however could be described as illusory as in Placer the promisor has the discretion of whether to carry out the promise. Here Jen could only offer Jill the position on the proviso or discretion Annie went on Holiday. On the balance it would seem that Jill could not sue for breach of contract as there was not a contract in place. Jill may be able to claim for equitable estoppel again referring to the Walton Stores where she has acted to her detriment on the basic assumption of the other parties. The ingredients of equitable estoppel were set out in Walton Stores by His Honour Brennan J as follows: Requirement one; the assumption or expectation of a legal relationship this requirement is satisfied by the statements you will work for me ... your wage will be $900 Jill accepted Requirement two: an inducement to adopt the assumption This can be related to the above. Requirement three: acting or abstaining from acting in reliance on the assumption Jill based on the assumption of full-time employment would cease looking for fulltime work. Requirement four: knowledge that that the representee will rely on the assumption . Using Walton Stores the and following J Brennans approach the Jen

would have known that Jill is relying on her full time job. Requirement five: the action or inaction will occasion detriment if the assumption is unfulfilled. The material detriment as in Hawker has not been satisfied. There has been no detriment as yet, due to Jill not beginning work until June. She may be able to claim if she turned down a job. Conversely she claimed she was doing nothing else this would infer that she is incurring no detriment in the meantime. Requirement six: failure to avoid detriment i.e. It is incumbent upon the representor to advise the relying party that the assumption is mistaken before detriment has been incurred as seen in Vella v Wah Lai Investment. Jill has not incurred detriment we can assume yet. Another case that is pertinent here is that of Ajayi where there 3 rules that Jen could use to revoke the non contractual promise. 1) the other party has not altered their positon in this case Jill has not done anything on the basis of her full time work. 2)The promisor being Jill can resile from the promise as long as she ahs given reasonable notice. 3) The promise only becomes final if Jill cannot resume her normal position that she had before the promise was made. A stated earlier the purpose of relief based on estoppel is to relieve against detriment and not to make good an expectation, So in this case there has been no detriment as yet. The case could be argued if Jill has rejected other full-time employment or had made arrangements in reliance on the promise then she could claim relief. In this case in balance Jen could let Jen know of the change in circumstance and based on the above would not be liable for a claim of equitable estoppel. The Contract offer between the pie manufacturer 1 and Annies. Was there a contract? Rules In Colonial ammunition Co v Reid(1900) 21 LR(NSW) 338 it stated there is no obligation for the business to make any orders at all and that they could purchase from any supplier that they liked. Dickinson V Dodds (1876) It does not matter who communicates the offer to the offeree as long as the information is reliable. Jen communicated the revocation of the offer from the original supplier of pies, due it being a standing order however this could have been done by just not placing a order. could purchase from any pie supplier she had no obligation to call the 1st pie supplier as all she needed to do was not send through the next order, or invoice. If Annie wanted to restart the contract as per standing order she would just need to send through a new order or invoice.

Jen and Pie Supplier 2 Was there a contract between Jen and Acme Pies?

Using the rules of Nielsen, Jen was prepared to bound as she gave her details for the purpose of invoicing This would indicate that negotiations were concluded as all important details such as price, delivery etc was already documented. There was consideration from the Pie supplier offering to supply the pies. Jen would be found in breach of contract if she did not accept the pies, however as discussed earlier Annie may have to apy for them under equitable estoppel.