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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Koutsopoulos v Pintusen (No 2) [2011] NSWCA 122 Hearing dates: 5 May 2011 Decision date: 24 May 2011 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. 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 Category: Principal judgment Parties: Peter Koutsopoulos (First Appellant) Helen Koutsopoulos (Second Appellant) Tichagorn Pintusen (Respondent) Representation: M Christie SC and L R Young (Appellants) G C Lindsay SC and A Hill (Respondent) Heidtman & Co (Appellants) Armstrongs Solicitors Pty Limited (Respondent) File Number(s): CA 2009/288167 Decision under appeal Jurisdiction: 9111 Citation: Pintusen v Koutsopoulos [2010] NSWSC 577 Date of Decision: 2010-06-04 00:00:00 Before: Bryson AJ File Number(s): SC 2009/288167