Masters v Cameron – Again!

Abstract

Since 1986 many Australian courts have accepted that there exists a fourth category of Masters v Cameron. In 2004 the authors published an article criticising this development. That article was the subject of a reply by David McLauchlan in which he defended the fourth category on the basis that it allowed for the enforcement of an agreement to agree which he thought was a welcome development. This present article is a comment on Professor McLauchlan's paper and argues that the adoption of the fourth category has conflated an issue of construction – the meaning of 'subject to contract' when used in an agreement – with an issue of fact, namely, whether the parties intend to be bound.