Koutsopoulos v Pintusen (No 2)

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.