18 Kirby P, at 14,569 to 14,570, gave a list of eight factors derived from the authorities which guided courts in this sort of case to reaching a conclusion; the eight factors included the size, importance and complexity of the subject matter, the conduct of the parties before and after the making of the contract and whether the informal agreement showed that the parties had reached consensus on all matters of importance, not just on the main matters of importance."
33 Having these matters in mind and considering what the evidence here reveals, it is apparent that these parties had already been involved with each other in other litigation which they had compromised. Shortly before the hearing in the Local Court, the parties' solicitors exchanged emails on 1 February 2010 and spoke with each other. That it was their solicitors who conducted the negotiations is a relevant matter to consider. The language used in their letters reveal that the defendant's solicitor had instructions to offer a settlement comprising 3 elements: the proceedings be discontinued; each party bear their own costs and the defendant pay the plaintiff $500 in return for title to the equipment. That offer was accepted in writing by the plaintiff's solicitor, with advice that a deed and a notice of discontinuance would be provided by the plaintiff. Mr Tsai's handwritten note on the offer letter confirms that unconditional acceptance was also conveyed orally. That is evidence of an agreement falling into the first class discussed in Masters v Cameron, namely that a settlement had been reached, which the parties intended would be evidenced by a deed. What was neither offered by the defendant, nor in contemplation when the offer was accepted for the plaintiff, was that the deed would contain the two terms to which the defendant later objected, when a deed was provided by the plaintiff. The deed was intended to document the agreement which had already been reached. The parties were not then intending that further terms required negotiation between them.
34 The defendant objecting to the two new terms later proposed can have been no surprise to the plaintiff. The defendant had already refused to agree to a non-disparagement clause in the earlier settlement of the other litigation in which the parties were involved, for the reasons his solicitor explained. That there would be a requirement to pay some $35,000 claimed in the proceedings, in the absence of the payment of the $500 agreed, also flew in the face of what had been already offered and accepted. The introduction of those new terms by the plaintiff did not reveal that an agreement had not already been reached. Rather it reveals a dispute as to what the deed which documented the agreement already reached could contain, about which the plaintiff purported to make a commercial decision. At that point it was too late for the plaintiff to seek to impose new terms on the defendant, having already accepted the offer which had been made.
35 It is apparent that while there was a concern to have prompt payment and a notice of discontinuance filed, given the proximity of the hearing, matters which could readily be dealt with between the solicitors, execution of a deed by the parties to the agreement was not required immediately. That, too, underscored that an agreement had been reached and that the deed was but intended to formally record that agreement.
36 The evidence simply does not leave open the conclusion which was finally reached in the proceedings below, that the parties had merely agreed to agree and were still negotiating the terms of their agreement. The language used by the solicitors in their email exchange was expressly that of the making and unconditional acceptance of an offer. The reference to a deed which would formally reflect the agreement was not expressed to be a counter offer. That it was intended to be a conditional acceptance or a counter offer was not apparent from either what was said, or what was done.
37 The problem which arose was the later introduction of terms which had not been discussed and were not agreed and which the plaintiff decided to insist on, after having already accepted the defendant's offer. That acceptance was unconditional. It was not subjected to the terms of a deed being negotiated or agreed. When the dispute as to the terms of the deed later arose, the parties were no longer negotiating the terms of their agreement, but whether or not the deed accurately reflected what had already been agreed. The stance taken by the plaintiff was not open. He was already bound by the agreement which had been made.