Kurnnan v Pivovarova

The dispute in Kurnnan v Pivovarova involved the defendants, who were buyers of a property, seeking to rescind the contract of sale on the basis of a failure to obtain finance. The plaintiff, the vendor, terminated the contract and sought damages for breach of contract. The matter was heard in the Local Court of New South Wales, and the plaintiff was successful. The defendants appealed the decision, and the plaintiff cross-appealed the costs awarded.

The central legal issue was whether the defendants had the right to rescind the contract based on their failure to obtain finance and if the plaintiff was entitled to terminate the contract and claim damages. The court had to determine whether the contract had become unconditional as to finance and if the defendants' failure to comply with the finance clause resulted in the loss of their right to rescind.

The court found that the contract became unconditional as to finance upon the defendants' failure to comply with their obligations under the finance clause. Consequently, the defendants lost their right to rescind the contract. The court held that the plaintiff was entitled to terminate the contract and claim damages for breach. The court also found that the magistrate had misunderstood the plaintiff's costs claim and ordered that the defendants pay the plaintiff's legal costs and disbursements of the Local Court proceeding at 75% of the costs under the Appendix to Order 63 of the Supreme Court Rules. The plaintiff's costs should be taxed, if not agreed, by the Taxing Officer of the Local Court.

The appeal was dismissed, and the cross-appeal was allowed. The plaintiff was awarded judgment in the sum of $13,840.23, plus pre-judgment interest at the rate of 10.5% from 25 March 2011. The court directed the parties to file draft orders for settling and gave liberty to apply should there be any further matter on which the court was required to rule.