Bell Scaffolding (Aust) Pty Ltd (“Bell”) was founded in 1983 by Mr Kevin Bell. It is now one of the leading scaffolding manufacturers and contractors in Eastern Australia. It sought to take advantage of the lower hire costs for scaffolding in the UK and in 1996 entered into a hire agreement with Rekon Ltd (“Rekon”). Mr Bell then set up Bell Scaffolding (UK) Ltd (“Bell UK”) and Bell Scaffolding Ltd (“Bell Scotland”) a few years later.

In 2000, Alba Hire & Sales Ltd (“Alba”) entered into an oral agreement with Bell UK for the purchase of kwikstage system scaffolding. The agreement was recorded in a memorandum that provided that the Alba would increase the hire of scaffolding to Bell Scotland under an existing agreement, on the understanding that all future scaffolding products would be purchased from Bell UK at “agreed prices”, with Rekon to continue to manufacture “specials” for certain clients (“agreement”).

Alba did not go ahead with the agreed purchases. Bell Scotland began to off-hire scaffolding before the hire period with Alba ended, then both Bell Scotland and Bell UK ceased trading. A dispute arose between the parties as to the scope of the agreement; particularly whether the agreement was sufficiently certain to be enforceable.

Bell (who had acquired the rights of Bell Scotland) claimed for loss of profits arising from the agreement between Bell UK and Alba. Both Rekon and Alba contended that it was only an agreement to agree and, in the absence of any agreement as to price, it was not intended to give rise to legal relations between the parties. Rekon and Alba also counterclaimed against Bell Scotland for unpaid sums in relation to scaffolding hire charges and damages for breach of contract.

Did the agreement give rise to enforceable obligations on Alba to purchase scaffolding from Bell UK? Did the reference to the ability of Rekon to produce “specials” affect Alba’s obligation to purchase items which were not specials?