Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 2)

[2015] NSWCA 119

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Rectification
3. › Common mistake
4. › Common intention of parties
5. › Subjective or actual intention
6. › Whether governing intention was to charge interest on flat or reducible basis
7. › Whether convincing proof established
1. Contract
2. › Rectification
3. › Common mistake
4. › Common intention as to effect of instrument
5. › Whether parties intended GST to be correctly charged
6. › Whether rectification available where instrument failed to achieve intended effect
1. Contract
2. › Rectification
3. › Common mistake
4. › Requirement for common intention
5. › Whether rectification available in absence of finding as to one party's intention
6. › Bank fees
1. Appeal
2. › Appellate review of factual findings
3. › Findings based on credibility of witnesses
4. › Whether findings glaringly improbable or contrary to compelling inferences
5. › Advantage of trial judge in assessing witnesses

Quick Take

Rectification for common mistake requires proof of the actual common intention of all parties to the contract. A finding as to one party's intention alone is insufficient; the court must make findings as to each party's intention. Where a party gives no evidence of an intention inconsistent with the written terms, and the written terms were before that party at the time of execution, rectification will not be ordered. The distinction between 'governing intention' and a concurrent intention to contract on the written terms requires evidence directed to the specific party's priorities, and cannot be established by assumptions about what would 'intuitively' be of paramount significance.