Case: Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353
Outcome: referred to
It is unnecessary to traverse the details of what occurred thereafter. The defendants contest Rosalind's entitlement to shares in the two companies based on what they contend was her agreement to give them up. According to the cross-claim, that agreement was constituted by the 18 January 2001 and 8 December 2001 agreements. The 18 January 2001 agreement was no more than an agreement to negotiate. So much was conceded from the bar table by the defendants' senior counsel in his final submissions. In closing, it was submitted by counsel for the defendants that the outcome of the 8 December 2001 meeting constituted a binding agreement on the authority of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353. In that case, the High Court constituted by Dixon CJ, McTiernan and Kitto JJ said at 360: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. In such a case, as described in Masters , there is a binding contract. What is critical, in the current circumstances, is to establish the intentions of the parties viewed objectively to be bound immediately at the 8 December 2001 meeting. No such evidence of any probative value was advanced in that regard. The evidence of Rosalind and the actions of both Neil and Mr McKenzie demonstrate a contrary intention. There was no agreement on 8 December 2001 other than to consider the proposals contained in Mr McKenzie's paper. Rosalind did not commit herself to those proposals at that meeting. She had not ever had the opportunity to fully consider them before it occurred. Mr McKenzie's letter to Mr Sproal on 10 December 2001 was based on a false premise that Rosalind had agreed to the terms of his proposal on the previous Saturday. The better view of the evidence, considered as a whole, is that she had not done so. 46 Having regard to the foregoing there is no reason why Rosalind should not be recognised as the holder of shares in the two companies. In fact, in 1990, the relevant register of shares showed Rosalind registered as the owner of one A Class share in Rocklands Pty Ltd. The evidence offered no explanation for this change or for its subsequent removal. Neil, under cross-examination, agreed that in 1990, Rosalind was beneficially entitled to have the A Class share registered in her name. Neil also agreed with the proposition put to him that: As to Rocklands, the correct situation which should be reflected in the share register concerning the A class shares is one share to you and one share to your sister. 47 On 25 July 2005, Neil wrote to Rosalind saying that he would arrange the "transfer of shares in both companies" to her as soon as she paid certain amounts allegedly owing to her father's estate and to the partnership upon receipt of advice as to when she would pay.