Case: Carminco Gold &amp; Resources Ltd v Findlay &amp; Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472
Outcome: cited
My present view is that the proper party to the Offer Letter, objectively considered, was and remains Lifestyle, primarily because it is the owner of the Tarneit Property and thus the only party directly capable of conveying a leasehold interest in the property to Coles: see Carminco Gold &amp; Resources Ltd v Findlay &amp; Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472 at [22] (stating that the identity of the parties is a "simple question as to who, objectively considered, were intended to be the parties to the contract"). Another reason for this view is that the negotiations resulting in the Offer Letter were carried over from a period when FKP was not even in the picture (ie when Lifestyle was still Wilbow and was not owned by FKP), objectively suggesting that for Coles it was never a question of doing a deal with FKP but was rather a question of doing a deal with the owner of the Tarneit Property, whoever that was. 5 There is of course room to take the opposing view. For example, cl 14(b)(3) of the Offer Letter permits Coles to terminate the agreement if the "Lessor" does not own all of the land comprising the Centre by 1 March 2008. From this, one might reasonably infer that the parties contemplated that, whether or not FKP at the time of the execution of the Offer Letter owned the land, it was taking steps to purchase or otherwise acquire that land (whether from Lifestyle or otherwise). No doubt if it were Coles on the other side of the proceeding, Coles would claim that FKP was the lessor, FKP did not own all the land by the specified date and therefore it was entitled to terminate. 6 Ultimately, this issue is not one to which I have given extended consideration for several reasons. For one thing, the respective positions of each side on this issue were never properly developed or addressed in oral submissions. For another, the issue seems like one that the parties ought to be able to come to some kind of agreement about, especially because it is not clear that the question has any practical significance in light of these facts and circumstances (ie where Coles is the complaining party). FKP is the 100% owner of Lifestyle and there does not seem to be any concern that one FKP entity or the other is lacking in resources; regardless of which entity might be made the subject of an order to pay a money judgment. Even if there is an order for specific performance compelling the respondents to grant a lease, which Coles seeks, Lifestyle would not necessarily have to be the party against whom it was directed; it could be crafted as an order directing FKP to cause Lifestyle, as its wholly-owned subsidiary and owner of the property, to grant a lease. 43 I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] .