Yule v Smith [2012] NSWCA 191

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yule v Smith [2012] NSWCA 191 Hearing dates: 1 June 2012 Decision date: 27 June 2012 Before: Macfarlan JA at [1] Sackville AJA at [2] Young AJA at [80] Decision: 1. Appeal allowed. 2. Set aside the orders made by the primary Judge on 10 August 2011. 3. Mr Smith to pay Ms Yule's cost of the appeal. 4. Mr Smith, if otherwise qualified, have a certificate under the Suitors Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - Orders made under s 73 of the Civil Procedure Act 2005 giving effect to Heads of Agreement - whether respondent had complied with conditions precedent in Heads of Agreement - construction of Heads of Agreement - whether Council had "certified" that work on the site had physically commenced and that development consent was still current - orders under s 73 set aside. Legislation Cited: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s 86(1) Civil Procedure Act 2005 (NSW), s 73 Environmental Planning and Assessment Act 1979 (NSW), s 80A(1)(b), s 80A(1)(c), s 80A(1)(d), s 92, s 95(4), s 96A(1), s 99(1), s 99(3), s 99(4), s 99(5), s 121B, s 123, s 124, s 125 Local Government (Consequential Provisions) Act 1993 (NSW), s 4 and sch 2 Property Relationships Act 1984 (NSW), s 9 Environmental Planning and Assessment Regulation 2000 (NSW), regs 264, 266 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (NSW), reg 23 Cases Cited: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214; 127 LGERA 333 Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; 138 LGERA 360 Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; 149 CLR 537 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; 86 ALJR 1 Texts Cited: W Carter et al, Contract Law in Australia (5th ed, 2007) Category: Principal judgment Parties: Beverley Anne Yule (Appellant) Darcy Peter Smith (Respondent) Representation: Counsel: L M Byrne with M S Rennie (Appellant) E C Muston (Respondent) Solicitors: Malouf Solicitors (Appellant) Brown Abrahams Burreket (Respondent) File Number(s): 2008/278833 Decision under appeal Jurisdiction: 9111 Citation: Yule v Smith [2011] NSWSC 598 Date of Decision: 2011-06-22 00:00:00 Before: Macready AsJ File Number(s): 2008/278833