Koutsovasiles v Randwick City Council [2003] NSWCA 69 (31 March 2003)

Last Updated: 14 May 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: KOUTSOVASILES v RANDWICK CITY COUNCIL [2003] NSWCA 69

FILE NUMBER(S):

40667/02

HEARING DATE(S): 31 March 2003

JUDGMENT DATE: 31/03/2003

PARTIES:

Jim Koutsovasiles, Matoula Koutsovasiles, Chris Jim Koutsovasiles

v

Randwick City Council

JUDGMENT OF: Handley JA Giles JA Santow JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC ED 3352/99

LOWER COURT JUDICIAL OFFICER: Davies AJ

COUNSEL:

Appellant: G T Miller QC/M F Galvin

Respondent: M Holmes QC/J Thompson

SOLICITORS:

Appellant: Creagh & Creagh

Respondent: Brown & Gerathy

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)

DECISION:

Leave to appeal refused; appeal dismissed as incompetent

JUDGMENT:

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:

"Your client's written acceptance to these conditions is requested at your earliest convenience".

6 The plaintiff's solicitors wrote to him on 29 June 1995 suggesting that if he was agreeable with the terms of the Council's offer he should sign the second copy of the letter of 22 June which they enclosed and return it to them so that they could forward it to the Council. The plaintiff did not do as his solicitors suggested, but claimed in oral evidence and in later correspondence that he accepted the Council's offer by sending a fax direct to the Council. This allegation gave rise to a substantial question of fact at the trial, which the Judge resolved adversely to the plaintiff. The Judge had the benefit of hearing and seeing the witnesses and did not accept the plaintiff's evidence on this issue.

7 Mr Miller relied on a number of subsequent events which were not in dispute to support his submission that this Court was entitled to disturb that finding. The matters relied upon were a letter from the Council's solicitors, Bowen & Gerathy, to the then solicitors for the plaintiff dated 3 June 1998, a minute of the Mayor dated 19 March 1999, which deals with the dispute between the plaintiff and the Council as at that date, and some statements by counsel for the Council, which appear at pp 59 and 60 in the transcript of the second day.

8 The letter from Bowen & Gerathy is quite equivocal because although they refer to the appellant's acceptance of the Council's letter of 22 June 1995 they don't say when that acceptance was received. The Council received a copy of that letter with the plaintiff's signature accepting its terms under cover of a letter from his then solicitor dated 20 February 1998.

9 The mayoral minute states that the plaintiff had accepted the terms of the Council's resolution of June 1995. The minute is again equivocal because the Mayor does not state that the plaintiff accepted the Council's offer of 22 June 1995 and his minute suggests that he was referring to the plaintiff's acceptance of the June resolution by his solicitor's letter of 20 February 1998 because the minute provided:

"While Mr Vasiles accepted the terms of the June 1995 resolution (see attached letter) he then asked Council not to construct the walkway (see Bowen & Gerathy's letters of 3 June 1998 and 15 March 1999, attached to General Manager's Report No. 15/1999)".

10 The statement: "he then asked Council not to construct the walkway", followed by references to letters in June 1998 and March 1999, suggests that the Mayor was not referring to an acceptance of the Council's offer within a reasonable time after 22 June 1995, but to his later acceptance of the terms of the resolution under cover of his solicitor's letter of 20 February 1998. At all events the mayoral minute is essentially equivocal.

11 The final matter relied on is the discussion with counsel in the passage in the transcript referred to. This relates to a possible acceptance in 1997 or 1998 of a renewed offer by the Council in its letter of 13 November 1997. In my judgment these matters individually and collectively provide no basis for disturbing the Judge's findings that the plaintiff did not accept the Council's offer of 22 June 1995 within a reasonable time.

12 Mr Miller also relied on building applications submitted by the plaintiff to the Council late in 1995 and early in 1996 as an acceptance of the Council's offer, but this submission cannot be accepted. The building applications are not an acceptance in writing as required by the terms of the Council's offer, and even if they could be construed in that way, the only building application prosecuted to an approval related to the plaintiff's own land at 90 Barker Street. This application and the approval were consistent with his acceptance of the Council's offer of 22 June 1995, but were equivocal because the work was to be done wholly within the plaintiff's land whether the transaction proposed on 22 June 1995 proceeded or not.

13 A separate application to build on the Council's land next to 88 Barker Street, which would be transferred to the plaintiff if the offer of 22 June 1995 had been implemented, did not proceed to an acceptance and it follows in my view that the plaintiff's case as pleaded was correctly dismissed.

14 The Court heard Mr Miller fully on a further submission that the Council's renewed offer in its letter of 13 November 1997 had been accepted. This invited the plaintiff to accept either the conditions in the Council's resolution of 30 November 1993 or the conditions in its resolution of 20 June 1995. An acceptance would have required the plaintiff to elect between these alternatives.

15 The two resolutions are in different terms and although some of the differences are minor, in my judgment they cannot be treated as so minimal as to be irrelevant for legal purposes and some of the differences are substantial. This alternative case, which does not depend upon any question of oral evidence, was also rejected by the Judge.

16 The first acceptance relied upon was a letter from the plaintiff's then solicitor, Mr John Hertz, of 2 December 1997 to the Council. However this simply said:

""We are instructed to advise that our client wants to proceed with the `land swap'".

17 Although this indicated a willingness on the part of the plaintiff to proceed, it failed to communicate an election between the alternatives proffered by the Council. The solicitor's letter also sought to negotiate other matters outside the Council's offer. It was not an acceptance.

18 The next acceptance relied upon is the plaintiff's own letter of 26 January 1998, but this referred to an existing agreement and did not purport to accept an offer to enter into a new agreement. It therefore cannot be an acceptance of the Council's offer, but in any event it did not evidence an election between the alternatives in the Council's offer.

19 The final acceptance relied upon was a letter from Mr Burrell to the Council of 20 February 1998. This enclosed a copy of the Council's original offer of 22 June 1995 with the undated signature of the plaintiff indicating his acceptance of its terms. The relevant passage for present purposes is:

"We have advised our client that a legally binding and enforceable agreement exists between Randwick City Council and Mr Vasiles which came into existence in June 1995".

20 The letter is not in terms an acceptance of the Council's offer and the law does not treat it as an acceptance. See Beesly v Hallwood Estates Ltd (1961) 1 WLR 549 at 558. Accordingly the plaintiff's unpleaded case also fails.

21 I would propose the following orders:

(1) Leave to appeal refused.

(2) Appeal dismissed as incompetent.

(3) Appellant to pay the respondent's costs.

22 GILES JA: I agree.

23 SANTOW JA: I agree.

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LAST UPDATED: 14/05/2003