KOUTSOVASILES v RANDWICK CITY COUNCIL [2003] NSWCA 69

New South Wales Court of Appeal

CITATION : KOUTSOVASILES v RANDWICK CITY COUNCIL [2003] NSWCA 69 HEARING DATE(S) : 31 March 2003 JUDGMENT DATE : 31 March 2003

JUDGMENT OF : Handley JA at 1; Giles JA at 22; Santow JA at 23 DECISION : Leave to appeal refused; appeal dismissed as incompetent

CATCHWORDS : CONTRACT - offer and acceptance - letter asserting contract already exists not acceptance of offer - SPECIFIC PERFORMANCE - informal agreement - no question of principle LEGISLATION CITED : Supreme Court Act 1970 (NSW) CASES CITED : Beesley v Hallwood Estates Ltd (1961) 1 WLR 549 Jim Koutsovasiles, Matoula Koutsovasiles, Chris Jim Koutsovasiles PARTIES : v Randwick City Council FILE NUMBER(S) : CA 40667/02 COUNSEL : Appellant: G T Miller QC/M F Galvin Respondent: M Holmes QC/J Thompson SOLICITORS : Appellant: Creagh & Creagh Respondent: Brown & Gerathy

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT SC ED 3352/99 FILE NUMBER(S) : LOWER COURT Davies AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40667/02 ED 3352/99 HANDLEY JA GILES JA SANTOW JA

31 March 2003 JIM KOUTSOVASILES & ORS v RANDWICK CITY COUNCIL

Judgment 1 HANDLEY JA: The appellant has appealed as of right from a decision of Davies AJ of 5 July 2002 who dismissed his application for specific performance of a contract for the exchange of land with the Council. 2 The plaintiff had sued for specific performance of an informal agreement for the exchange of 0.6 of a metre of Kennedy Lane, Randwick on the frontage to that lane of 88 Barker Street to be transferred to the plaintiff for the surrender of 0.6 of a metre of the Kennedy Lane frontage of 90 Barker Street to be transferred to the Council. 3 The appeal is clearly incompetent although no objection was taken to its competency. Section 101(1) of the Supreme Court Act is expressed to be subject to the Act and this includes sub s 2 which provides a number of exceptions to the general right of appeal so as to require leave before the appeal can be properly entertained. 4 Although the dismissal of the plaintiff's proceedings for specific performance was final there is no evidence that the monetary amount prescribed by s 101(2)(r) is satisfied and it is highly unlikely that it ever could be satisfied. In fact Mr Miller QC for the appellant fairly conceded that the appeal was not competent as of right. The Court having ruled that the appeal was incompetent indicated that it would hear the proceedings on their merits to determine whether leave to appeal should be granted. 5 The plaintiff's claim for specific performance as pleaded was based on his acceptance of a written offer by the Council contained in its letter to his then solicitors dated 22 June 1995. Its second last sentence stated: