FLOWERS and 1 Other v VESCIO and 2 Others [2006] NSWCA 342

FLOWERS and 1 Other v VESCIO and 2 Others [2006] NSWCA 342

The deed of settlement was properly characterised as a deed to settle litigious claims, not predominantly a sale of shares. On its construction, the respondents' obligations to relinquish claims and transfer shares arose only after payment of the $180,000 and, in any event, the share transfer mechanism had not been triggered by any direction as to how the shares were to be transferred. The respondents therefore had an accrued and unconditional right to payment by 4pm on 19 August 1999, which was not divested by their later acceptance of the appellants' repudiation. They were entitled to recover the $180,000 plus interest.

Jurisdiction
Australia
Judgment Date
06 December 2006
Procedural Posture
Contract Appeal Concerning Recovery of a Specified Sum Under a Deed of Settlement / Appeal From District Court Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['deed of Settlement' 'repudiation' 'accrued Rights After Termination' 'accord and Satisfaction' 'recovery of Stipulated Sum' 'anticipatory Breach' 'construction of Contract']
['contract Law'] ['deed of Settlement' 'repudiation' 'accrued Rights After Termination' 'accord and Satisfaction' 'recovery of Stipulated Sum' 'anticipatory Breach' 'construction of Contract']

Case Brief

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Procedural Posture

Contract Appeal Concerning Recovery of a Specified Sum Under a Deed of Settlement / Appeal From District Court Judgment

Legal Issues

  1. 1 ['Whether the deed of settlement was predominantly a contract for sale of shares or a contract to settle litigation with the share transfer merely incidental.' "Whether the appellants' obligation to pay $180,000 was conditional upon the respondents first or simultaneously transferring their shares." 'Whether the respondents had an accrued and unconditional right to receive $180,000 before the deed was discharged by acceptance of repudiation.' 'Whether the deed of settlement constituted an accord executory so that non-payment merely revived the settled litigation rather than permitting recovery of the stipulated sum.']

Ratio Decidendi

The deed of settlement was properly characterised as a deed to settle litigious claims, not predominantly a sale of shares. On its construction, the respondents' obligations to relinquish claims and transfer shares arose only after payment of the $180,000 and, in any event, the share transfer mechanism had not been triggered by any direction as to how the shares were to be transferred. The respondents therefore had an accrued and unconditional right to payment by 4pm on 19 August 1999, which was not divested by their later acceptance of the appellants' repudiation. They were entitled to recover the $180,000 plus interest.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "Appellants to pay the respondents' costs of the appeal and to be entitled to a certificate under the Suitors Fund Act, if qualified."]