NSW Caselaw
New South Wales Supreme Court
CITATION : ACN 002 804 702 (formerly Brooks Building) v McDonald [2009] NSWSC 610
HEARING DATE(S) : 09-10 June 2009
JUDGMENT DATE : 3 July 2009
JURISDICTION : Equity
JUDGMENT OF : White J
DECISION : Make a declaration and order in accordance with paras 1 and 2 of the Relief Claimed in the statement of claim. Exhibits may be returned after 28 days.
CATCHWORDS : EQUITY - equitable remedies - specific performance - Application for specific enforcement of defendant's promise to consent to the filing of a consent order for setting aside of judgment – terms of settlement required remedial building work to be carried out - whether terms of settlement have been performed by plaintiffs - CONTRACTS - building, engineering and related contracts - performance of work - whether engineer's certificate conclusive evidence that works had been performed in accordance with settlement – construction of contract to determine what effect is to be given to a certificate - CONTRACTS - building, engineering and related contracts - performance of work - whether entire performance or substantial performance required before settlement agreement can be enforced – whether agreement an 'entire contract' – whether agreement substantially performed
LEGISLATION CITED : Civil Procedure Act 2005 (NSW)
CATEGORY : Principal judgment
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 National Coal Board v William Neil & Son [1985] 1 QB 300 RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1992) 11 BCL 74 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 Batey v Gifford (1997) 42 NSWLR 710 Dainford Ltd v Lam (1985) 3 NSWLR 255 Vella v Ayshan [2008] NSWSC 84; (2008) NSW ConvR 56-209 CASES CITED : GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1 Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 Mondel v Steel (1841) 8 M&W 858 Tan Hung Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178 Hoenig v Isaacs [1952] 2 All ER 176 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2003] NSWCA 4; (2003) 56 NSWLR 576 Zamperoni Decorators Pty Ltd v Lo Presti [1983] VR 338 Simpson Steel Structures v Spencer [1964] WAR 101 Bolton v Mahadeva [1972] 1 WLR 1009
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