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Yule v Smith

Yule v Smith

Case [2012] NSWCA 191 27 June 2012

Statutory Construction

Remedies

Civil Procedure

Contract Law

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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

Judgment

MACFARLAN JA: I agree with Sackville AJA.

SACKVILLE AJA: This is an appeal from final orders made by an Associate Justice of the Supreme Court (Macready…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yule v Smith

Details

AGLC: Yule v Smith [2012] NSWCA 191
Case: [2012] NSWCA 191
Decision Date: 27 June 2012

CaseChat Overview and Summary

In *Yule v Smith*, the Court of Appeal of New South Wales considered an appeal concerning orders made under section 73 of the *Civil Procedure Act 2005* which sought to give effect to a Heads of Agreement. The central dispute revolved around whether the respondent, Mr Smith, had complied with certain conditions precedent stipulated within the Heads of Agreement, specifically whether the Council had "certified" that work on the site had physically commenced and that the development consent remained current.

The legal issues before the Court of Appeal were primarily concerned with the proper construction of the Heads of Agreement and, consequently, whether the conditions precedent for the operation of the orders under section 73 had been met. The court was required to determine the meaning of "certified" in the context of the agreement and the evidence presented regarding the Council's actions.

The Court of Appeal, comprising Macfarlan JA, Sackville AJA, and Young AJA, allowed the appeal. Their reasoning focused on the interpretation of the Heads of Agreement, finding that the respondent had not satisfied the conditions precedent. The court concluded that the Council had not provided the necessary certification as required by the agreement, meaning the basis for the primary judge's orders was flawed. Accordingly, the Court of Appeal set aside the orders made by the primary judge on 10 August 2011.

Orders

Orders of the court

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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Yule v Smith [2012] NSWCA 191

Most Recent Citation

Monaltrie Area Community Association Incorporated v Santin [2025] NSWLEC 38

Cases Citing This Decision

Monaltrie Area Community Association Incorporated v Santin [2025] NSWLEC 38
Citation 1 (Para 43)

…nt to lapse (in the sense noted earlier in this judgment) following the end date, effectively rendering the consent inoperative: Yule v Smith [2012] NSWCA 191 at [60].…
Hive Empire Pty Limited v MultiRational Pty Limited [2019] NSWSC 1371
Citation 2

…20 In Yule v Smith [2012] NSWCA 191, the Court considered whether a settlement agreement had been reached in relation to division of property of parties to a de facto relationship. Sackville AJA said: [50]. The most obvious apparent omission is that, although the Heads of Agreement contains mutual releases, it does…
Steer v Burchill [2017] QDC 206
Citation 3 (Para 1)

…td (1982) 149 CLR 37 per Mason J at 551 and 552 and Gibbs CJ at 541; See also Maynard v Goode (1926) 37 CLR 529 per Isaacs J at 541; Yule v Smith [2012] NSWCA 191 at para [81]; [57]Para 37 of the outline of argument of the respondent plaintiff. [58]Para 39 of the outline of argument of the respondent plaintiff; par…
Beverley Yule v Darcy Smith [2013] NSWSC 209
Citation 4 (Para 1)

…In the Court of Appeal ( Yule v Smith [2012] NSWCA 191), Sackville AJA (with whom Macfarlan JA and Young AJA agreed) held that clauses 2.2 and 2.3 of the Heads of Agreement required first that the Development Consent in relation to the Property was still current and secondly that the work on the Property had physic…
Yule v Smith (No 2) [2012] NSWCA 301
Citation 5 (Para 1)

…SACKVILLE AJA: On 27 June 2012, the court made orders allowing the appeal in this matter: Yule v Smith [2012] NSWCA 191. The Court set aside the orders made by the primary Judge on 10 August 2011 and ordered the respondent (Mr Smith) to pay the appellant's (Ms Yule's) costs of the appeal.…

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Cases Cited

Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45
Citation 1 (Para 1)

…mber bench of the High Court, when dismissing an application for special leave to appeal in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; 86 ALJR 1.…
Yule v Smith [2011] NSWSC 598
Citation 2 (Para 1)

…ce of the Supreme Court (Macready AsJ), dismissing proceedings brought by the appellant ("Ms Yule") against the respondent ("Mr Smith"): Yule v Smith [2011] NSWSC 598. In the proceedings, Ms Yule claimed that she and Mr Smith had lived together in a bona fide domestic relationship for some 20 years, between May 198…
Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169
Citation 3 (Para 19)

…Whether the consent has lapsed is probably a mixed question of fact and law: see Tobias JA in Hunter Development Brokerage Pty Ltd v Cessnock Council (2005) 63 NSWLR 124, at [19].…
Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530
Citation 4 (Para 1)

…s the period during which development may be carried out: see s 80A(1)(b), (c), (d); Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; 138 LGERA 360. The 1991 development consent predated the enactment of these provisions. Nonetheless, a prospective purchaser of the Property might w…
Hilltop Planners Pty Limited v Great Lakes Council [2003] NSWLEC 214
Citation 5 (Para 1)

…tice to complete work within a specified time did not include revocation of a development consent: see Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214; 127 LGERA 333, at 343-344 [48]-[49], per Talbot J; EPA Act, ss 123-125. However, dealings between a developer and a consent authority relating to a…
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317
Citation 6 (Para 1)

…5(4)) was whether in fact work of the requisite kind had physically commenced and had been lawfully undertaken before the development consent lapsed: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243. But the Council could do no more than express its opinion that work had (lawfully) physically commenced before the consent lapsed. The…
Perri v Coolangatta Investments Pty Ltd [1982] HCA 29
Citation 7 (Para 1)

…ce is premature (see, for example, J W Carter et al, Contract Law in Australia (5th ed, 2007), at [13.16] ff; Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; 149 CLR 537.…

Legislation Cited

Property (Relationships) Act 1984 (NSW) 9
3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW) 73
2 mentions (from Para 1)
Environmental Planning and Assessment Act 1979 (NSW) 80A(1)(b)
2 mentions (from Para 1)
Local Government (Consequential Provisions) Act 1993 (NSW) 4
2 mentions (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention

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