Koutsopoulos v Pintusen

Court of Appeal

New South Wales

Case Title:	Koutsopoulos v Pintusen
Medium Neutral Citation:	[2011] NSWCA 120
Hearing Date(s):	5 May 2011
Decision Date:	05 May 2011
Jurisdiction:
Before:	Campbell JA at [1]; Macfarlan JA at [18]; Young JA at [19]
Decision:	Application to receive additional evidence refused. [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:	APPEAL - s 75A(8) Supreme Court Act 1970 - whether further evidence can be received on appeal - what constitutes "special grounds" for the purpose of s 75A(8) - three conditions required by Akins v National Australia Bank - tests for determining "special grounds" are not exhaustive and possess some flexibility - Akins criteria not satisfied where with reasonable diligence evidence could have been obtained at the trial - Akins criteria not satisfied where evidence sought to be tendered is largely inadmissible and of little probative value
Legislation Cited:	Supreme Court Act 1970
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Texts Cited:
Category:	Interlocutory applications
Parties:	Peter Koutsopoulos (First Appellant) Helen Koutsopoulos (Second Appellant) Tichagorn Pintusen (Respondent)
Representation
- Counsel:	Counsel M Christie SC; LR Young (Appellants) GC Lindsay SC; A Hill (Respondent)
- Solicitors:	Solicitors Heidtman & Co (Appellants) Armstrongs Solicitors (Respondent)
File number(s):	2009/288167
Decision Under Appeal
- Court / Tribunal:
- Before:	Bryson AJ
- Date of Decision:	04 June 2010
- Citation:	Pintusen v Koutsopoulos [2010] NSWSC 577
- Court File Number(s)	2009/288167
Publication Restriction:	Nil

Judgment - Ex Tempore

1. CAMPBELL JA : This is an application by the Appellant in this proceeding to tender an affidavit of Kenneth Ian MacDougall made on 11 April 2011. Mr MacDougall is the solicitor for the Respondent to the appeal. The Appellant was the vendor of a piece of real estate and the Respondent was the purchaser.

1. Mr MacDougall's affidavit is said to go to a question of whether the purchaser of real estate was entitled to exercise a right of rescission that she was given by the contract if she did not obtain finance by a particular date. The judge in the decision appealed from held that the purchaser had validly exercised that right of rescission. The clause in the contract obliged the purchaser promptly to apply for finance.

1. Counsel for the purchaser wishes to argue that the obligation to apply for the finance promptly was a condition precedent to the exercise of the purchaser's right of rescission and that the purchaser failed to make the type of application she was contractually required to make. This result was said to arise because she…