A court may find that a contractual provision contains a mistake (here, a defined term given no work to do and a clause rendered meaningless) yet still hold that the mistake cannot be corrected by construction where the clause as written produces a workable commercial result and the correction sought involves too great a departure from the language used. In such cases, rectification remains available as a separate remedy. The doctrine of account stated does not bar recovery of underpayments calculated under a formula containing a mistake where the payments were not made with knowledge of the true entitlement. Acquiescence and laches defences to rectification require the defendant to establish that the plaintiff had knowledge of the mistake and its entitlement, and that the defendant suffered prejudice from the delay.
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