Koutsopoulos v Pintusen (No 2) - [2011] NSWCA 122

Court of Appeal

New South Wales

Case Title: Koutsopoulos v Pintusen (No 2)

Medium Neutral Citation: [2011] NSWCA 122

Hearing Date(s): 5 May 2011

Decision Date: 24 May 2011

Jurisdiction:

Before:
Campbell JA at [1]; Macfarlan JA at [2]; Young JA at [6]

Decision:
Appeal dismissed 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- election- contract for sale of land contained two special conditions with two independent rights to rescind, one if unsuccessful development approval, one if finance not obtained- whether election against rescission in solicitors' letter referred to unsuccessful finance approval- letter must be construed in its context which includes the factual matrix- words must be given the meaning intended by the parties-there was no election with regards to finance approval as only rescission due to unsuccessful development approval was in mind.

CONTRACTS- election by conduct- sale of land contract contained right of rescission if application for finance approval was unsuccessful- relevance of general conduct apparently affirming contract before result of finance application known- whether constitutes an election not to exercise right to rescind contract- election requires choice between two mutually exclusive rights- purchaser did not elect as there were not mutually inconsistent rights- conduct was consistent with wishing to complete contract but keeping in reserve right to rescind.

Legislation Cited:

Cases Cited:
ACI Operations Pty Ltd v Manawaii Development Co No 7 Pty Ltd (1971) 25 LGRA 235
AG v Prince Ernest Augustus of Hanover [1957] AC 436
Byers v Dorotea Pty Ltd (1986) 69 ALR 715
Finagrain SA Geneva v Kruse [1976] 2 LL Rep 508 (CA)
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26
Kammins Ballroom Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
Koustopoulos v Pintusen [2011] NSWCA 120
MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39
Petrie v Dwyer [1954] HCA 75; 91 CLR 99
Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634
Turner v Labafox International Pty Ltd [1974] HCA 41; 131 CLR 660

Texts Cited:

Category: Principal judgment

Parties:
Peter Koutsopoulos (First Appellant)
Helen Koutsopoulos (Second Appellant)
Tichagorn Pintusen (Respondent)

Representation

- Counsel:
M Christie SC and L R Young (Appellants)
G C Lindsay SC and A Hill (Respondent)

- Solicitors:
Heidtman & Co (Appellants)
Armstrongs Solicitors Pty Limited (Respondent)

File number(s): CA 2009/288167

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: Bryson AJ

- Date of Decision: 04 June 2010

- Citation: Pintusen v Koutsopoulos [2010] NSWSC 577

- Court File Number(s) SC 2009/288167

Publication Restriction:

Judgment

CAMPBELL…

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.

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Details

Case: [2011] NSWCA 122
Decision Date: 24 May 2011

CaseChat Overview and Summary

The dispute in *Koutsopoulos v Pintusen (No 2)* concerned a contract for the sale of land which contained two special conditions, each providing an independent right to rescind. The first right to rescind arose if development approval was unsuccessful, and the second arose if finance was not obtained. The central issue was whether an election had been made by the purchasers against exercising their right to rescind based on unsuccessful finance approval.

The court was required to determine whether a solicitors' letter constituted an election to affirm the contract, thereby waiving the right to rescind due to a lack of finance. This involved construing the letter in its factual context to ascertain the meaning intended by the parties and considering whether the purchasers' general conduct prior to the finance application outcome amounted to an election. An election requires a choice between two mutually exclusive rights, and the court had to assess if such mutually inconsistent rights were present in this scenario.

The court reasoned that the solicitors' letter, when construed in its context, indicated that the election to affirm the contract related only to the rescission right concerning unsuccessful development approval. The purchasers' conduct was consistent with a desire to complete the contract while retaining the right to rescind if finance was not obtained. Therefore, there was no election with respect to the finance approval, as the purchasers had not been presented with mutually exclusive rights in relation to that condition. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed 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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Koutsopoulos v Pintusen (No 2)
Medium Neutral Citation:	[2011] NSWCA 122
Hearing Date(s):	5 May 2011
Decision Date:	24 May 2011
Jurisdiction:
Before:	Campbell JA at [1]; Macfarlan JA at [2]; Young JA at [6]
Decision:	Appeal dismissed 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- election- contract for sale of land contained two special conditions with two independent rights to rescind, one if unsuccessful development approval, one if finance not obtained- whether election against rescission in solicitors' letter referred to unsuccessful finance approval- letter must be construed in its context which includes the factual matrix- words must be given the meaning intended by the parties-there was no election with regards to finance approval as only rescission due to unsuccessful development approval was in mind. CONTRACTS- election by conduct- sale of land contract contained right of rescission if application for finance approval was unsuccessful- relevance of general conduct apparently affirming contract before result of finance application known- whether constitutes an election not to exercise right to rescind contract- election requires choice between two mutually exclusive rights- purchaser did not elect as there were not mutually inconsistent rights- conduct was consistent with wishing to complete contract but keeping in reserve right to rescind.
Legislation Cited:
Cases Cited:	ACI Operations Pty Ltd v Manawaii Development Co No 7 Pty Ltd (1971) 25 LGRA 235 AG v Prince Ernest Augustus of Hanover [1957] AC 436 Byers v Dorotea Pty Ltd (1986) 69 ALR 715 Finagrain SA Geneva v Kruse [1976] 2 LL Rep 508 (CA) Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26 Kammins Ballroom Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 Koustopoulos v Pintusen [2011] NSWCA 120 MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 Petrie v Dwyer [1954] HCA 75; 91 CLR 99 Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 Turner v Labafox International Pty Ltd [1974] HCA 41; 131 CLR 660
Texts Cited:
Category:	Principal judgment
Parties:	Peter Koutsopoulos (First Appellant) Helen Koutsopoulos (Second Appellant) Tichagorn Pintusen (Respondent)
Representation
- Counsel:	M Christie SC and L R Young (Appellants) G C Lindsay SC and A Hill (Respondent)
- Solicitors:	Heidtman & Co (Appellants) Armstrongs Solicitors Pty Limited (Respondent)
File number(s):	CA 2009/288167
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Bryson AJ
- Date of Decision:	04 June 2010
- Citation:	Pintusen v Koutsopoulos [2010] NSWSC 577
- Court File Number(s)	SC 2009/288167
Publication Restriction: