Birdwood & Gravino

In the matter of Birdwood & Gravino, the respondent, a solicitor, appealed against a decision of the primary judge to rectify a Binding Financial Agreement (BFA) between him and the appellant. The dispute centred on the interpretation and rectification of a BFA concerning the division of proceeds from the sale of a property in Suburb B. The BFA specified that the appellant would transfer 75% of her interest in the property to the respondent but also provided for an equal division of the sale proceeds. The primary judge rectified the clause to reflect the intended division of the proceeds, but the respondent did not argue that the clause should be read differently. The appeal contested the need for rectification and sought to uphold the BFA as it was written.

The legal issues before the court were whether the primary judge was correct in rectifying the BFA to change the division of the proceeds from equal to 25% for the appellant and 75% for the respondent, and whether there was sufficient evidence to justify the rectification. The court had to consider the terms of the BFA, the intentions of the parties as expressed in the document, and whether there was a clear error or misunderstanding in the agreement that warranted rectification. The court also had to assess the costs associated with the appeal and whether the rectification was justified under the circumstances.

The court found that the disconformity between the provisions for the transfer of the interest in the property and the division of its proceeds was not clear from the terms of the BFA. The court noted that the various drafts and amendments could not be used to determine the true meaning of the agreement. Consequently, the court upheld the BFA as written and dismissed the application for rectification. The court allowed the appeal and ordered that the respondent pay the appellant's costs, setting the amount at $20,000 due to the lack of detail in the appellant's cost schedule.

The final orders of the court were that the appeal would be allowed, the application for rectification dismissed, and the respondent ordered to pay the appellant’s costs in the sum of $20,000 within 28 days.