A party seeking rectification of a commercial contract must prove not only that a mistake was made but must positively establish what the true common intention was in clear and precise terms; it is not sufficient to show that the written instrument does not represent the common intention. Where a contract has been negotiated over a prolonged period by experienced professionals and applied without dispute for many years, the presumption that the executed instrument reflects the true agreement is particularly powerful. Non-binding heads of agreement, even if referenced in covering letters accompanying draft documents, do not without more establish a binding common intention as to the terms of the final executed contract. For rectification by construction, the test of absurdity is not satisfied merely because a provision produces a peculiar or commercially unfavourable result; the literal meaning must be absurd and it must be self-evident what the objective intention was and what correction should be made.
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