Swift v McLeary [2014] NSWCA 52

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Swift v McLeary [2014] NSWCA 52 Hearing dates: 4 March 2014 Decision date: 04 March 2014 Before: McColl JA at [1]; Basten JA at [2]; Barrett JA at [9] Decision: 1. Dismiss summons seeking leave to appeal. Applicant/respondent to pay respondent/appellant's costs of that summons. 2. Dismiss notice of motion filed on 3 March 2014 with costs. 3. Dismiss appeal with costs. 4. Dismiss cross-appeal with costs. [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: CONTRACTS - contracts for the benefit of a third party - specific performance thereof - whether promisor's obligation contingent on payment by promisee - whether damages can be awarded when specific performance has been ordered Cases Cited: Falcke v Gray (1859) 4 Drew 651; 62 ER 250 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 McLeary v Swift [2012] NSWSC 1403 Ogden Industries Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 Smalley v Motor Accidents Authority of New South Wales [2013] NSWCA 318 Category: Principal judgment Parties: Martin Swift - (Appellant) Jeffrey John McLeary (Respondent) Representation: Counsel: J T Johnson (Appellant) R T McKeand SC/B C A Bradley (Respondent) Solicitors: Beazley Singleton Lawyers (Appellant) Shotters Lawyers (Respondent) File Number(s): 2012/384187 Decision under appeal Citation: [2012] NSWSC 1403 Date of Decision: 2012-11-04 00:00:00 Before: Windeyer AJ File Number(s): 2011/69385