Kelly v Ollis - [2003] NSWSC 1032

Reported Decision:
(2005) NSW ConvR 56-101

Supreme Court

CITATION: Kelly v Ollis [2003] NSWSC 1032

HEARING DATE(S): 30/10/03

JUDGMENT DATE:
7 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: The rectification suit is dismissed, thus the plaintiff's suit for specific performance succeeds.

CATCHWORDS: EQUITY [76]- Remedies- Rectification- Vendor's solicitor failed to insert date for completion- The contract was intended to be adjusted in light of an election by the purchaser to undertake subdivision work- Contract was not so adjusted- Neither vendor nor purchaser, nor their lawyers, read the contract before signing it- Whether there was an operative mistake- Circumstances in which a court will rectify an instrument- On facts insufficient evidence that purchaser made any mistake- Vendor's mistake was in signing off on the contract without adjusting it- Not a case of an agreement which was mistranscribed- How far vendor's negligence a discretionary defence.

CASES CITED: Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467
Ball v Storie (1823) 1 Sim & St 210; 57 ER 84
Budget Stationery Supplies Pty Ltd v National Australia Bank Ltd (1996) 7 BPR 14,891
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320
Katsaounis v Belehris [1995] ANZ ConvR 114
MacKenzie v Coulson (1869) LR 8 Eq 368
Monaghan County Council v Vaughan [1948] Ir R 306
Nicolene Ltd v Simmonds [1953] 1 QB 543
Re Freehouse Pty Ltd (1997) 26 ACSR 662
Shellburne (Countess) v Inchiquin (Earl) (1784) 1 Bro CC 338; 28 ER 1166
Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359
Taylor v Johnson (1983) 151 CLR 422
Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1981] 1 WLR 505
Weeds v Blaney [1978] 2 EGLR 84
Whiteside v Whiteside [1950] Ch 65

PARTIES :
Lindsay Malcolm Kelly (P)
Victor Warren Ollis (D)

FILE NUMBER(S): SC 4274/03

COUNSEL: M Ashhurst (P)
R Parsons (D)

SOLICITORS: Clayton Utz (P)
Whitelaw McDonald (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 7 November 2003

4274/2003 – KELLY v OLLIS

JUDGMENT

1 HIS HONOUR: This is a purchaser’s suit for specific performance. The defendant's principal answer to it is that the relevant contract for sale should be rectified and if so rectified had been validly terminated. If the contract is rectified, the purchaser probably cannot succeed in the suit. If the contract is not rectified, the vendor probably cannot resist specific performance. It is thus appropriate to deal first with the rectification issue.

2 The proceedings were heard by me on 30 October 2003. Mr M Ashhurst appeared for the plaintiff and Mr R Parsons for the defendant. At the conclusion of the hearing I requested some additional written submissions which duly arrived earlier this week. I am grateful to both counsel for their assistance.

3 It would seem that the defendant, Mr Ollis, is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v Ollis

Details

AGLC: Kelly v Ollis [2003] NSWSC 1032
Case: [2003] NSWSC 1032
Decision Date: 7 November 2003

CaseChat Overview and Summary

In Kelly v Ollis, the Federal Court considered an application for rectification of a contract for sale of land. The vendor's solicitor had failed to insert the agreed date for completion in the contract. The parties had intended to adjust the contract in light of the purchaser's election to undertake subdivision work, but this adjustment was not made. Neither party, nor their lawyers, read the contract before signing it. The purchaser sought rectification of the contract, claiming it did not reflect the parties' agreement due to the missing completion date.

The court had to determine whether there was an operative mistake in the contract that would justify rectification. It considered whether the purchaser had made a mistake and whether the vendor's negligence could be a defence. The court held that there was insufficient evidence that the purchaser made any mistake, as neither party read the contract before signing it. The vendor's mistake was in signing off on the contract without adjusting it. The court noted that this was not a case of a mistranscribed agreement. The court further held that the vendor's negligence could be a defence, but only if the purchaser could show that the vendor's negligence caused the mistake.

Ultimately, the court found that the purchaser had not demonstrated that the vendor's negligence caused the mistake. The application for rectification was dismissed. The court emphasised that rectification is an extraordinary remedy and is only available in limited circumstances. The court noted that the remedy is not available where the party seeking rectification has contributed to the mistake by not reading the contract before signing it. The court also held that the vendor's negligence could be a defence, but only if the purchaser could show that the vendor's negligence caused the mistake. In this case, the purchaser had not made out this defence.

Orders