(HIGH COURT OF AUSTRALIA) In holding that certain performance bonds should be rectified in order to correct a common mistake, applied the traditional test of asking what was the actual or true common intention of the parties
Kiefel J (with whose reasons for granting rectification French CJ also agreed) commented: ‘Lord Hoffmann’s view involves a departure from the traditional approach of the courts to rectification. Its utility has been questioned. It has been observed that it is difficult to see why a prior agreement, objectively determined, should override the later instrument, unless it reflects the parties’ actual intentions. The need for consistency which his Lordship thought desirable may also be questioned. Rectification is an equitable remedy which is concerned with a mistake as to an aspect of what an instrument records and with the conscience of the parties. The common law, on the other hand, deals with the interpretation of the words chosen by the parties to reflect their agreement and it does so pragmatically, by reference to considerations such as business efficacy.’
Judges:
French CJ , Gageler, Nettle and Gordon JJ
Citations:
[2016] HCA 47
Links:
Jurisdiction:
Australia
Cited by:
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 18 July 2022; Ref: scu.640347
