Case: Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 
Outcome: applied
The use of the concept of agency to overcome the need for privity is a technique which was described in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] by Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ adopting the words of Lord Bingham of Cornhill (in Homburg Houtimport BV v Agrosin Private Ltd [2003] UKHL 12 ; [2004] 1 AC 715 at 744) as 'a deft and commercially-inspired response to technical English rules of contract, particularly those governing privity and consideration'. As their Honours went on to note in the case of a stevedore seeking the benefit of a Himalaya clause against a consignee of damaged cargo, courts have been ready to conclude that the carrier was acting with the stevedore's authority. As Lord Wilberforce said in his classic opinion in New Zealand Shipping Co Ltd v AM Satterthwaite &amp; Co Ltd [1975] AC 154 at 167E, the law of contract takes a practical approach in commercial situations '... often at the cost of forcing the facts to fit uneasily into the slots of offer, acceptance and consideration'. Even if Monster be correct to say that at the end of the day it received a lesser sum than that which the customer paid for the download, that was a result of Monster entering into arrangements with the telecommunications networks, perhaps on behalf of the customer or perhaps on its own behalf, it matters not, for the purposes of ensuring that the customer bought the download at the overall price Monster advertised that it was charging. 128 Monster argued that the offer of 28 October 2005 was open to be accepted over three months later on 7 February 2006. In general, the law implies that when no time limit for the exercise of a right is stipulated, the right may be exercised within a reasonable time unless there are indications to the contrary: Reid v Moreland Timber Co Pty Limited [1946] HCA 48 ; (1946) 73 CLR 1 at 13 per Dixon J. I am of opinion that this statement of the rule, coming from a case in contract, is just as applicable to a case where an offer to enter into a contract is made. Ordinarily in contract, absent an express provision to the contrary, where no time is fixed for performance, the parties are, or the party upon whom the obligation is cast is, obliged to perform within a reasonable time: see e.g. Perri v Coolangatta Investments Pty Limited [1982] HCA 29 ; (1982) 149 CLR 537 at 545-546 per Gibbs CJ, 567 per Brennan J (with whom Stephen J agreed). And, in Ballas v Theophilos [No 2] [1957] HCA 90 ; (1957) 98 CLR 193 at 197 Dixon CJ (with whom McTiernan J agreed) said that the implication of law, where a partnership deed limited no time for the exercise of an option, is that the option had to be exercised within a reasonable time. Dixon J observed that the stipulations contained in the relevant clause itself affected what a reasonable time was. Williams J, came to a like conclusion (at 98 CLR at 199). 134 The rights and liabilities of the parties to a contract are determined by a reference to what each party by words or conduct would have led a reasonable person in the position of the other party to believe ( Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165 at 179 [40] ). I am of opinion that the same principle should be applied to the evaluation of whether an offer, the acceptance of which would bring the parties into an actual contractual relationship, is capable of acceptance. A reasonable person in the position of the parties would have regarded the offer of 28 October 2005 as not remaining open for an indefinite time. Such a person would have said on 7 February 2006 that the offer of 28 October 2006 had lapsed some considerable time before.