Koutsopoulos v Pintusen

[2011] NSWCA 120

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 applied to the Commonwealth Bank of Australia (" the Bank ") not only for finance to purchase the property in question, but also for finance to pay for some construction work on the property and some equipment she wished to use in conducting a business there.

1. Nothing in the summons, the pleading of a cross-claim, or the affidavits filed in advance of the hearing of this matter provided a basis for believing that there would be any issue about that at the trial.

1. It is true though that counsel for the vendors made reference to it in some written pre-trial submissions that were delivered two days before the commencement of the trial and in final submissions. The evidence at the trial did not include the finance applications in question.

1. Section 75A of the Supreme Court Act1970 provides in subs (7) that the court on an appeal may receive further evidence. Subsection (8) says:

"Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds."

It is s 75A(8) that is relevant in the present case.

1. The principles that are usually applied in the exercise of the court's discretion under s 75A(8) are those identified by Clarke JA in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 where his Honour identified three conditions required to be met in general before fresh evidence can be admitted.

1. These are:

(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; and

(3) The evidence must be credible.

1. Section 75A(8) does not confer a completely untrammelled discretion on the court to receive further evidence whenever it can identify special grounds: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [11] and [136]. Further while the Akins tests are usually applicable the tests are not exhaustive and possess some flexibility: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council at [6]-[11], [22] and [134]-[136].

1. In the present case however the application can adequately be dealt with by the application of the Akins criteria. I am not satisfied that either the first or second of the requirements has been met.

1. As to the first, whilst it is true that the affidavit sought to be tendered was sworn only on 11 April 2011, the topic with which it deals was some communications in the latter part of 2008 between the solicitor for the purchaser and a Mr Buxton, who was the officer of the Bank that the purchaser had approached for finance. There is no reason why the solicitors for the vendors could not have sought discovery or interrogatories concerning that topic prior to the trial, if they had wished to. Nor is there any reason why they could not have subpoenaed the Bank's files so that the precise terms of the loan application or applications could have been ascertained with certainty from the relevant documents; nor is there any reason why they could not have subpoenaed Mr Buxton if that were relevant.

1. As to the second of the requirements, the affidavit sought to be tendered contains the following material:

"At that time it remained the earnest desire of the Respondent to complete the purchase and the purpose of my conversations with Mr Buxton was to endeavour to expedite the Bank's consideration of the Respondent's application for finance.

During one of those conversations I said to Mr Buxton words to the effect 'is the Bank prepared to finance the purchase of the land and leave its consideration of the balance of the loan application to a later time?'.

Mr Buxton replied with words to the effect 'I don't think so, the application was for the purchase of the land and its redevelopment and it's an 'all or nothing' proposition. I will however submit your request'.

On or about 31 October 2008 Mr Buxton said to me in a further telephone conversation words to the effect 'The Bank has refused to make any part of the proposed loan available'."

1. Insofar as it attributes to Mr Buxton the words that "the application was for the purchase of the land and its redevelopment" , that attribution, which is itself mere hearsay, is of a hearsay prcis by Mr Buxton of the contents of documents. It is inadmissible as anything other than the context of a supposed admission by Mr MacDougall.

1. Mr Buxton's statement: "it's an all or nothing proposition" might have been indicative of what the application said or it might have been indicative of the Bank's attitude to the application.

1. Insofar as the conversation referred to the loan application, or the application in the singular, the evidence is so slight as to be nearly worthless as a means of proving that only one application was made.

1. Furthermore, the conversations in question were not in contexts in which one would expect the solicitor or Mr Buxton to state the circumstances of the application other than loosely or colloquially, even if they both had complete knowledge of all the circumstances.

1. For those reasons, in my view, neither the first nor the second of the Akins requirements are made out and the application to receive the evidence should be rejected.

1. MACFARLAN JA : I agree.

1. YOUNG JA : I also agree.

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