Croser v Croser & Ors

[2025] SASCA 145

Supreme Court of South Australia - Court of Appeal

Built by Barristers,
For Australian Law.

1. matter of a contract, may be too widely interpreted so as so include something which one of the parties had not necessarily in his mind at the time of the contract
1. in my opinion it can only properly relate to something which both must necessarily have accepted in their minds as an essential and integral element of the subject-matter.

A perfected consent order embodying a contract between the parties will ordinarily only be set aside where there is a basis for setting aside the underlying contract; while the court's discretion under r 186.1 may not be strictly confined to those circumstances, departure from this principle would require exceptional or rare circumstances.
A valuation error as to an attribute or feature of the asset being valued (here, overlooking that part of a water allocation was non-tradeable) is distinguishable from an error as to the identity of the asset itself; the former does not deprive the valuation of its character as a fair market valuation in accordance with the parties' agreement, and the parties remain bound by it under the Hudson principles.
The existence and extent of an equitable jurisdiction to set aside a contract for common mistake under Australian law remains unsettled pending High Court guidance; the majority suggested the focus should be on unconscionability rather than categorisation of the mistake, while the dissent held Solle v Butcher should be followed as endorsed by the High Court in Taylor v Johnson.