Lang v Kirkness

In *Lang v Kirkness* [1995] NSWCA 253, the New South Wales Court of Appeal considered a dispute between the appellant, Lang, and the respondent, Kirkness. The case concerned the interpretation and enforceability of a written agreement for the sale of a business, specifically relating to the inclusion of certain assets in the sale.

The primary legal issue before the Court of Appeal was whether the written agreement, which purported to record the sale of a business, accurately reflected the parties' intentions regarding the inclusion of specific items of plant and equipment. This involved determining whether the agreement was a complete and final expression of the parties' bargain, or if it was subject to rectification due to a common mistake or misrepresentation concerning the inclusion of these items.

The Court analysed the evidence presented, including the written agreement itself and the conduct of the parties. It applied principles of contract law concerning the parol evidence rule, which generally prevents the admission of extrinsic evidence to contradict or vary the terms of a written contract. However, the Court also considered the equitable remedy of rectification, which may be available where a written document fails to accurately record the true agreement of the parties due to a common mistake. The Court ultimately found that the written agreement did not accurately reflect the parties' common intention regarding the inclusion of the plant and equipment, and that rectification was an appropriate remedy.

The Court of Appeal ordered that the written agreement be rectified to include the specified plant and equipment as part of the sale.