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

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

Purchaser's letter of 31 July 2008 referred only to election not to rescind under Special Condition 42 and not Special Condition 43; purchaser's subsequent conduct was consistent with keeping contract on foot while reserving right to rescind under Special Condition 43, as no mutually exclusive rights had crystallised; purchaser complied with precondition to rescission under Special Condition 43.2; appellants' appeal fails on all grounds.

Parties
First Appellant: Peter Koutsopoulos; Second Appellant: Helen Koutsopoulos; Respondent: Tichagorn Pintusen
Jurisdiction
Australia
Judgment Date
24 May 2011
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed with costs
Legal Topics
Election by Conduct, Rescission of Contract, Affirmation of Contract, Sale of Land, Conditions Precedent
Contracts Election by Conduct Rescission of Contract Affirmation of Contract Sale of Land Conditions Precedent

Case Brief

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Parties

Peter Koutsopoulos

First Appellant

Helen Koutsopoulos

Second Appellant

Tichagorn Pintusen

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether purchaser elected against rescission by letter of 31 July 2008
  2. 2 Whether purchaser affirmed contract after right to rescind arose
  3. 3 Whether pre-condition of right to rescind under Special Condition 43 had been established

Ratio Decidendi

Purchaser's letter of 31 July 2008 referred only to election not to rescind under Special Condition 42 and not Special Condition 43; purchaser's subsequent conduct was consistent with keeping contract on foot while reserving right to rescind under Special Condition 43, as no mutually exclusive rights had crystallised; purchaser complied with precondition to rescission under Special Condition 43.2; appellants' appeal fails on all grounds.

Court Disposition

appeal dismissed with costs

Orders

  • appeal dismissed with costs
  • notice of motion seeking to read fresh evidence dismissed with costs