Please note that the exact format to be followed in mooting submissions may be specified in the rules of a particular competition.

The following submissions have been compiled for a domestic competition and are intended to serve as a generic guide.

It is intended at a later date to add examples of submissions (memorials) made in each of external international mooting competitions to provide guidance for students intending to try-out for these mooting teams.

FUL. 2673 of 2005
 

BETWEEN:

AND

LIST OF SUBMISSIONS FOR THE APPELLANT

(Ms Rebekah Poole - Senior Counsel for the Appellant)

1. The trial judge erred in finding that:

i) The Agreement between the Appellant and Respondent was merely an agreement to agree and was not enforceable.

ii) The deliveries that occurred between February 2003 and January 2004 were subject only to the terms contained in the invoices.

2. The Agreement was a concluded contract and is enforceable because there existed:

i) Intention to Create Legal Relations

ii) Agreement

iii) Consideration

ELEMENTS OF THE CONTRACT

3. Intention to Create Legal Relations

3.1 Intention to create legal relations is presumed in commercial relationships.

3.1.1 The parties’ relationship was a continuing one for commercial purposes, work was done and accepted within that relationship, and progress payments were claimed and made

3.1.2 No evidence exists to suggest that when negotiating the Agreement in January 2003 the parties had any intention other than to create a legally binding relationship.

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

4. Agreement

4.1 Agreement is an objective test consisting of:

4.1.1 A firm promise by one party to be legally bound on ascertainable terms which can be accepted as they stand, and

4.1.2 An offer unconditionally assented to by the offeree.

4.1.3 Communication of offer and acceptance need not be made in identical or matching manners.

Brambles v Bathurst City Council (2001) 53 NSWLR 153

4.2 Formal execution of a contract is not always necessary.

4.2.1 A contract does not need to be signed if the goods were received and accepted in part or in whole by the buyer.

4.2.2 Acceptance occurs when the buyer does any act in relation to the goods which recognises a pre-existing contract of sale.

Sale of Goods Act 1895 (WA)

4.3 Agreement can be inferred from the conduct of the parties.

4.3.1 Such an inference will be made where, objectively, the parties have acted on the reasonable assumption that they have made a contract despite the apparent absence of an identifiable acceptance.

4.3.2 Post-contractual conduct is admissible in determining whether a contract was formed.

Brogden v Metropolitan Railway Co. (1877) 2 App Cas 666

Brambles v Bathurst City Council (2001) 53 NSWLR 153

4.4 Silence can indicate acceptance of an offer in some circumstances.

4.4.1 The test is whether a reasonable bystander would regard the offeree ’ s conduct, including the offeree ’ s silence, as signalling acceptance of the offer.

4.4.2 As the Respondent had a reasonable opportunity to reject the offer of the goods, but failed to do so, it is open for the court to find that the offer was accepted according to its terms.

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

 

5. Consideration

5.1 Enforceability of a promise depends upon providing something in response which legally constitutes consideration.

5.1.1 The Appellant promised to provide a guaranteed supply of a set amount of water, at a fixed price, for a 4 year period.

5.1.2 The Respondent provided part-payments and a promise to keep this commercial relationship going for 4 years.

Brambles v Bathurst City Council (2001) 53 NSWLR 153

BREACH

6. Breach of Contract

6.1 Non-performance occurs when a promisor fails to comply with both the scope and standard of performance required by a contractual obligation.

6.1.1 The Respondent was required to accept 600GL of water on the 1 st of every month, and pay the Appellant $1.25/L within 30 days.

6.1.2 The Respondent failed to comply with these obligations.

6.2 The mere fact of a breach of contract by one party, automatically entitles the other party to an award for damages.

6.2.1 The Appellants claim loss of profits for the balance of the 4 year term.

 

SUMMARY

7. It is submitted that:

7.1 Performance of the Agreement as contemplated by the parties had taken place and consequently an enforceable and legally binding contract should be implied on its terms.

7.2 The Agreement was a concluded contract as there existed an intention to create binding legal relations, agreement between the parties, and consideration for the promise.

7.3 The Agreement was breached by the Respondent, thereby entitling the Appellant to claim damages for breach of contract, namely loss of profit for the balance of the 4 year term.

7.4 Consequently the Supreme Court of Western Australia must allow this appeal and vary the orders of the learned trial judge.

________________________________________________________________________

List of Authorities:

1. Brogden v Metropolitan Railway Co. (1877) 2 App Cas 666
2. Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
3. Brambles v Bathurst City Council (2001) 53 NSWLR 153
4. Sale of Goods Act 1895 (WA)