Mander Pty Ltd & Anor v Clements

[2005] WASCA 67

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Equity
2. › Rectification
3. › Scope of doctrine
4. › Common intention
5. › Whether mistake arose in formation of common intention or in reducing intention to writing
6. › Whether rectification available where parties deliberately chose words used but were mistaken as to underlying facts
1. Equity
2. › Rectification
3. › Evidence of common intention
4. › Whether evidence established common intention to indemnify owner of property rather than named individual
5. › Standard of proof
6. › Convincing proof required
1. Contract
2. › Construction
3. › Indemnity clause
4. › Whether indemnity in favour of named individual necessarily implied indemnity in favour of owner of property

Quick Take

Rectification is not available where the mistake leading to the disconformity between the contract and the parties' true agreement arose in the formation of the common intention rather than in the formal step of reducing that intention to writing. Where a party represents themselves as the owner of property throughout negotiations and the contract names them personally as beneficiary of an indemnity, the fact that a different entity is the legal owner does not establish a common intention to indemnify the owner as such, and rectification to substitute the legal owner's name will be refused.