Medsara Pty Limited v Sande & Ors

[2005] NSWCA 40

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Rectification
3. › Unilateral mistake
4. › Unconscionable conduct in knowingly taking advantage of another party's mistake
5. › Whether purchaser knew of vendor's error in specifying completion date
6. › Taylor v Johnson doctrine
1. Evidence
2. › Credibility of witnesses
3. › Failure to call available witness
4. › Jones v Dunkel inference
5. › Whether inference available where witness could have given evidence on contested issue
1. Costs
2. › Indemnity costs
3. › Whether unconscionable conduct alone sufficient
4. › Whether more than unconscionable conduct must be established for special costs order

Quick Take

Unconscionable conduct in knowingly taking advantage of another party's mistake (Taylor v Johnson) warrants rectification but does not, without more, justify indemnity costs. More than unconscionable conduct — such as deceit — must be established for a special costs order. The Jones v Dunkel inference applies where a party fails to call an available witness who could have given evidence on a contested factual issue.