Yule v Smith [2012] NSWCA 191

Yule v Smith [2012] NSWCA 191

Clauses 2.2 and 2.3 of the Heads of Agreement imposed separate obligations: Mr Smith had to provide Council certification that the 1991 development consent was still current and certification that work had physically commenced. The Council letters were sufficient to satisfy cl 2.3 because they conveyed the Council's view that physical commencement had occurred, but they did not expressly assure or certify that the development consent remained in force in May 2010. Because Mr Smith did not comply with cl 2.2, the primary Judge erred in making orders under s 73 of the Civil Procedure Act 2005 (NSW) giving effect to the Heads of Agreement.

Jurisdiction
Australia
Judgment Date
27 June 2012
Procedural Posture
Appeal in Proceedings Concerning Orders Under S 73 of the Civil Procedure Act 2005 (nsw) Giving Effect to Heads of Agreement Settling Property Relationships Act 1984 (nsw) Proceedings / Appeal From Final Orders of Macready as J Dismissing the Proceedings
Outcome
Appeal allowed; orders of the primary Judge set aside.
Legal Topics
['compromise or Settlement of Proceedings' 'construction of Heads of Agreement' 'conditions Precedent' 'development Consent Currency' 'physical Commencement of Development' 'civil Procedure Act 2005 (nsw) S 73']
['practice and Procedure' 'contract Law' 'property Relationships' 'planning and Development Law'] ['compromise or Settlement of Proceedings' 'construction of Heads of Agreement' 'conditions Precedent' 'development Consent Currency' 'physical Commencement of Development' 'civil Procedure Act 2005 (nsw) S 73']

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Procedural Posture

Appeal in Proceedings Concerning Orders Under S 73 of the Civil Procedure Act 2005 (nsw) Giving Effect to Heads of Agreement Settling Property Relationships Act 1984 (nsw) Proceedings / Appeal From Final Orders of Macready as J Dismissing the Proceedings

Legal Issues

  1. 1 ['Whether Mr Smith complied with cll 2.2 and 2.3 of the Heads of Agreement by providing letters from Gosford Local Council.' "Whether the Council's letters certified that the development consent for the Property was still current." "Whether the Council's letters certified that there had been practical or physical commencement of work on the Property." 'Whether orders giving effect to the Heads of Agreement should have been made under s 73 of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

Clauses 2.2 and 2.3 of the Heads of Agreement imposed separate obligations: Mr Smith had to provide Council certification that the 1991 development consent was still current and certification that work had physically commenced. The Council letters were sufficient to satisfy cl 2.3 because they conveyed the Council's view that physical commencement had occurred, but they did not expressly assure or certify that the development consent remained in force in May 2010. Because Mr Smith did not comply with cl 2.2, the primary Judge erred in making orders under s 73 of the Civil Procedure Act 2005 (NSW) giving effect to the Heads of Agreement.

Court Disposition

Appeal allowed; orders of the primary Judge set aside.

Orders

  • ['Appeal allowed.' 'Set aside the orders made by the primary Judge on 10 August 2011.' "Mr Smith to pay Ms Yule's cost of the appeal." 'Mr Smith, if otherwise qualified, have a certificate under the Suitors Fund Act 1951.']