(New South Wales Supreme Court) ‘I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it’ and ’42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common ‘mistake applies to’ a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: ‘Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia.’
Judges:
Palmer J
Citations:
[2002] NSWSC 115
Jurisdiction:
England and Wales
Cited by:
Cited – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Equity, Contract
Updated: 16 May 2022; Ref: scu.187292