Gerace v Art Coating [1999] NSWSC 837

New South Wales Supreme Court CITATION : Gerace v Art Coating [1999] NSWSC 837 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1516/99 HEARING DATE(S) : 14/07/99 JUDGMENT DATE : 20 August 1999

PARTIES : Maurizio Gerace v Art Coating Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : Mr J. Armfield for the plaintiff Mr S. Campbell for the defendant SOLICITORS : Margiotta Solicitors for the plaintiff Hunt & Hunt for the defendant CATCHWORDS : Equity. Application for specific performance of agreement to commute to a lump sum a workers compensation claim.; Contracts. Whether non-fulfilment of condition subsequent makes contract void or voidable. Effect on condition requiring consent by repeal of legislative requirement for consent. Tran v JR Manufacturing Industries Pty Ltd unreported 10.11.98 West v Barker & Ors unreported 27.2.81 Gange v Sullivan (1966) 16 CLR 418 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR Suttor v Gundowda Pty Ltd (1950) 81 CLR 418. CASES CITED : NZ Shipping Co Ltd v Societe des Ateliers et Chantiers de France (1919) AC Almond v Camrol Pty Ltd (1984) 3 BPR 9466 Childs Pty Ltd v Rumboll (1990) NSW Conv R 55-510 Reid v Bennett, McKinley 3rd Party (1955) VLR 505 Besier v Foster (1952) 94 CLR 526 Gosper v Christopherson (1985-86) 160 CLR 243 DECISION : Paragraph 47

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Friday 20 August 1999

1516/99 MAURIZIO GERACE v ART COATING PTY LIMITED JUDGMENT 1 MASTER: This is the hearing of the proceedings in which the plaintiff seeks specific performance of an agreement to commute rights under the Workers Compensation Act. A Judge of the Court has made an order that the whole of the proceedings be heard by a Master. 2 A resolution of the issues in the case will require some consideration of the terms of the Workers' Compensation legislation and the way it has changed during the history of the factual background with which I am concerned. In summary the defendants resist the application on two grounds. The first is that it was a condition precedent to any liability under the agreement that the plaintiff obtain the approval of Workcover to the proposed agreement to compromise the claim by commuting the plaintiffs rights. The second ground is that the defendant suggests, when looking at the parties' actions objectively since March 1998, they have abandoned the agreement to compromise.