27 Oct The appellant did not reply but went ahead with the manufacture and supply of the PVC grids.

Unacceptable." The respondent sent back a telex on the same day: "Ple read yrself yr conditions of sale and compare with text of our order. The deviations are too numerous to list." The appellant did not reply but went ahead with the manufacture and supply of the PVC grids. During the time when the appellant was manufacturing "Variation orders" [were] issued by the respondent which stated: "Unless otherwise stipulated above all other terms and conditions of our original order still apply." This was confirmed by the appellant by facsimile dated 12 July. Smart J held that the contract was constituted, as alleged by the respondent, by order No 0449 and the "confirmation" [11,108] of 28 January. I see no reason to disagree. On that view, having regard to the authorities [on] contracts made by telex or facsimile,in the contract was made in NSW. It was argued for the appellant that there was never any written agreement, that there was merely an inconclusive "battle of the forms" and that there was ultimately a contract constituted by the actual supply of goods and payment for them. I would reject this view, involving as it does that the appellant manufactured the goods without there being any contractual obligation on the respondent to purchase them and, further, that both parties were content to make an open contract in disregard of their carefully worded standard terms. In my view an objective observer would have inferred, first, an acceptance by the appellant of the respondent’s standard terms, then an attempt to substitute its own terms, vigorously resisted by the respondent, then an abandonment of the attempt and an acquiescence in the respondent’s terms. KIRBY P. To determine where the contract was made, it is necessary to decide what the contract was. The exchanges between the parties were by telex and telefacsimile. The appellant accepted that contracts made in this way are made when and where the acceptance is received by this virtually instantaneous means. There is no decision of this court confirming the English authorities on this point. However, I am content, without deciding the question, to approach this appeal as the parties invite the court to do. MCHUGH JA. I agree with the Chief Justice.