Justice Eileen Bransten
Plaintiff investment and merchant bank brought a contractual and tort action against defendant technology company. Plaintiff sought to recover a “success fee” pursuant to a written agreement between the two parties under which defendant had engaged plaintiff to provide financial advisory and investment banking services. The court granted defendant’s motion to dismiss the complaint, determining that the initial proposal made by plaintiff was rejected by defendant and replaced by other material terms. The court added that the proposal first made by plaintiff was silent as to which transactions would result in a “success fee” while defendant’s response specified which transactions would result in a “success fee.” The court noted that there is no evidence that there was the requisite meeting of the minds on which transactions were to be covered, an issue that was germane and material to the enforcement of the contact. The court further added that, even if it considered the agreement one that could be amended and extended by way of performance, as opposed to in writing, the terms of the agreement’s extension are unclear and were not made any clearer by virtue of the alleged performance.