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

New South Wales Court of Appeal

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

HEARING DATE(S): 26 October 2006

JUDGMENT DATE: 6 December 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Bryson JA at 65

DECISION: Appeal dismissed with costs (see Orders at [64])

CATCHWORDS: CONTRACT – Recovery of a specified sum of money under a repudiated contract settling litigation between the parties – competing contractual principles in McDonald & Anor v Dennys Lascelles Ltd (1933) 48 CLR 457 at respectively 476 and 477 in relation to recovery of damages for breach – whether contract was predominantly to settle litigation with an uncompleted sale being merely incidental and whether the occasion had yet arisen requiring transfer of property pursuant thereto – effect of failure to complete sale by party seeking to claim damages and claiming to be ready, willing and able to complete sale – whether party seeking to recover damage had an accrued right to receive payment of a specified sum before contract was repudiated by the other party and that repudiation accepted – anticipatory breach – meaning of the word "upon" payment of a sum – accord and satisfaction and distinction between an accord executory and an accord predicated upon the doing of the thing promised – distinction between damages for loss of bargain and recovery of a stipulated sum.

Amco Wrangler Ltd v Sukkar (1985) 1 NSWLR 577 Hyundai Heavy Industries Co ltd v Papadopoulos [1980] 1 WLR 1129 CASES CITED: McDermott v Black (1940) 63 CLR 161 McDonald & Anor v Dennys Lascelles Ltd (1933) 48 CLR 457 Re Murphy (1947) 47 SR(NSW) 433

John FLOWERS (First Appellant) Angela FLOWERS (Second Appellant) PARTIES: Leo VESCIO (First Respondent) Zena VESCIO (Second Respondent) Costa GOUMAS (Third Respondent)