Pintusen v Koutsopoulos - [2010] NSWSC 577

CITATION: Pintusen v Koutsopoulos [2010] NSWSC 577

HEARING DATE(S): 25 May 2010

JUDGMENT DATE :
4 June 2010

JURISDICTION: Equity Division

JUDGMENT OF: Bryson AJ

DECISION: 1. A declaration that the contract for sale of land made between the plaintiff as purchaser and the defendants as vendors on 4 April 2008 in respect of the whole of the land comprised in Folio Identifier 1/553955 and being Lot 1 in Deposited Plan No 553955 has been validly terminated by the plaintiff.
2. Give judgment for the plaintiff against the defendants for $129,500.00.
3. Order that the defendants pay the plaintiff’s costs of the proceedings.
4. Dismiss the Cross-claim with costs.

CATCHWORDS: VENDOR AND PURCHASER - contract for sale of real property contained non-standard Special Condition 43 which conferred right of rescission on each party if final approval of finance not obtained by 30 June - Special Condition 42 conferred right of rescission on Purchaser if development consent not obtained by 31 July - on 31 July when neither finance approval nor development consent had been obtained the parties agreed to alter Special Condition 42 by extending time - Development consent was given on 12 September, finance approval was refused on 29 October. Parties made several agreements extending time for completion and time was of the essence for 5 pm on 31 October - Purchaser rescinded at 2.26 pm, Vendors terminated at 5.20 pm. It was contended that right of rescission under Special Condition 43 had been lost by election, waiver, estoppel, etc - On consideration of facts in detail, there was no election. Discussion of construction of Special Conditions. Decision on own facts.

LEGISLATION CITED: Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Byers & Ors v Dorotea Pty Limited (1986) 69 ALR 715
Immer (No 145) Pty Limited v Uniting Church in Australia Property Trust (NSW) (1992) 182 CLR 26
Sargent v ASL Developments Limited (1974) 131 CLR 634
Secured Income Real Estate (Australia) Limited v St Martin’s Investments Pty Limited (1979) 144 CLR 596

PARTIES: Tichagorn Pintusen (Plaintiff)
Peter Koutsopoulos (First Defendant)
Helen Daphne Koutsopoulos (Second Defendant)

FILE NUMBER(S): SC 288167 of 2009

COUNSEL: A Hill (Plaintiff/Cross-Defendant)
L Young (Defendants/Cross-Claimants)

SOLICITORS: Armstrongs Solicitors Pty Limited (Plaintiff/Cross-Defendant)
Heidtman & Co (Defendants/Cross-Claimants)

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

FRIDAY 4 JUNE 2010

09/288167 TICHAGORN PINTUSEN V PETER KOUTSOPOULOS & ANOR

JUDGMENT

: The purchaser as plaintiff and the vendors as defendants and cross-claimants each make claims for remedies arising out of a contract for sale of land on the Law Society’s 2005 edition, which they entered into on 4 April 2008 for the sale of the property at New Line Road, Dural. The price was $1,300,000 and the purchaser paid a 10% deposit. The vendors conducted a licensed restaurant in the property for many years; they became its owners in about 1988 and conducted the restaurant until about the end of July 2007. The purchaser, who conducted a restaurant in Dubbo, NSW,…

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: [2010] NSWSC 577
Decision Date: 4 June 2010

CaseChat Overview and Summary

The matter of Pintusen v Koutsopoulos involved a dispute between the vendor and purchaser of real property. The contract contained special conditions which provided for rights of rescission if certain events did not occur by specified dates. Specifically, Special Condition 43 provided for a right of rescission if final approval of finance was not obtained by 30 June, while Special Condition 42 provided for a right of rescission if development consent was not obtained by 31 July. On 31 July, neither finance approval nor development consent had been obtained, and the parties agreed to alter Special Condition 42 by extending the time for obtaining development consent. Development consent was subsequently obtained on 12 September, but finance approval was refused on 29 October. The parties made several agreements extending the time for completion, with time being of the essence for 5 pm on 31 October. The purchaser rescinded at 2.26 pm, and the vendors terminated at 5.20 pm. The central issue for the court was whether the right of rescission under Special Condition 43 had been lost by election, waiver, estoppel, or otherwise.

The court considered the facts of the case in detail and found that there was no election by either party to waive the right of rescission under Special Condition 43. The court held that the parties had not acted in a way that would indicate an intention to waive or lose the right of rescission. The court also considered the construction of the special conditions and held that the right of rescission under Special Condition 43 was not lost by the agreement to alter Special Condition 42. The court found that the agreement to alter Special Condition 42 did not amount to an election or waiver of the right of rescission under Special Condition 43. The court also held that there was no estoppel preventing either party from exercising their right of rescission. The court found that the purchaser was entitled to rescind the contract, and the vendors were not entitled to rely on any alleged election, waiver, or estoppel to prevent the purchaser from exercising their right of rescission.

The court ordered that the purchaser's right of rescission under Special Condition 43 was valid and enforceable, and that the vendors were not entitled to rely on any alleged election, waiver, or estoppel to prevent the purchaser from exercising that right. The court also ordered that the purchaser's rescission was effective and that the contract was terminated. The court did not make any orders as to damages or costs.

Orders