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

Judgment

1. McCOLL JA: I agree with Barrett JA's reasons.

1. BASTEN JA: Prior to February 2009 the appellant (Martin Swift) and the respondent (Jeffery McLeary) carried on an air conditioning and refrigeration business. One of the companies through which the business was conducted was Teffcog Pty Ltd ("Teffcog"). Although Mr Swift's shares in Teffcog were transferred to Mr McLeary, the separation agreement provided that each would be liable to pay half of any tax liabilities of Teffcog assessed in relation to years prior to 30 June 2008.

1. Upon receipt of an amended assessment from the Australian Taxation Office, Mr McLeary arranged for payment of one-half of the amount owing, which payment was made by the trustee of his family trust. Mr Swift did not pay his half, leading Mr McLeary to commence proceedings in the Equity Division for specific performance and damages. Windeyer AJ ordered that Mr Swift fulfil his obligations under the agreement: McLeary v Swift [2012] NSWSC 1403.

1. Mr Swift brought an appeal from that judgment. Mr Swift submitted that the agreement involved mutual obligations in respect of the tax liability of Teffcog and that Mr McLeary had not met his obligation to pay half the debt, because, rather than making the payment himself,…