ACN 002 804 702 (formerly Brooks Building) v McDonald

The plaintiffs sought specific performance of a promise by the defendant to consent to the filing of a consent order for setting aside a judgment. The underlying dispute concerned remedial building work that was required as part of a settlement agreement. The plaintiffs argued that they had performed their obligations under the settlement agreement, while the defendant claimed that they had not fully complied with the terms of the agreement, particularly in relation to the remedial building work.

The court had to decide several legal issues, including whether the terms of the settlement agreement had been performed by the plaintiffs, whether the engineer's certificate was conclusive evidence that the works had been performed in accordance with the settlement agreement, and whether the settlement agreement required entire performance or substantial performance before it could be enforced. The court also had to determine the effect of the engineer's certificate under the settlement agreement and whether the agreement was an entire contract or whether substantial performance was required.

The court found that the plaintiffs had substantially performed their obligations under the settlement agreement, including the remedial building work. The court held that the engineer's certificate was not conclusive evidence that the works had been performed in accordance with the settlement agreement, but that the certificate was relevant to determining whether the plaintiffs had substantially performed their obligations. The court also found that the settlement agreement did not require entire performance, but that substantial performance was sufficient. The court held that the agreement was not an entire contract and that substantial performance was required before the defendant's promise to consent to the filing of a consent order could be enforced. The court granted the plaintiffs' application for specific performance, ordering the defendant to consent to the filing of a consent order for setting aside the judgment.

The court ordered the defendant to consent to the filing of a consent order for setting aside the judgment within 14 days of the court's decision. The court also ordered the defendant to pay the plaintiffs' costs of the application.