Tipping J set out the requirements for rectification for common mistake: ‘(1) That, whether there is an antecedent agreement or not, the parties formed and continued to hold a single corresponding intention on the point in question.
(2) That such intention continued to exist in the minds of both or all parties right up to the moment of execution of the formal instrument of which rectification is sought.
(3) That while there need be no formal communication of the common intention by each party to the other or outward expression of accord, it must be objectively apparent from the words or actions of each party that each party held and continued to hold an intention on the point in question corresponding with the same intention held by each other party.
(4) That the document sought to be rectified does not reflect that matching intention but would do so if rectified in the manner requested.’
Judges:
Tipping J
Citations:
[1987] 2 NZLR 21
Jurisdiction:
England and Wales
Cited by:
Approved – Pimlico Properties Limited v Driftwood Developments Limited 10-Nov-2009
Court of Appeal of New Zealand – Rectification is an equitable remedy whereby a written contract which does not reflect the common intention of the parties can be modified or corrected so that it does. . .
Approved – Robb v James 28-Feb-2014
(New Zealand Court of Appeal) The Court contrasted ‘the state of some uncertainty as to the requisites for rectification in English law’ (referring to the Daventry case) with the ‘relatively settled’ position in New Zealand where ‘Tipping J’s 1987 . .
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.640348
