JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 11, 16 May 2016
DATE OF JUDGMENT:	5 August 2016
CASE MAY BE CITED AS:	Rees v Rees
MEDIUM NEUTRAL CITATION:	[2016] VSC 452

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CONTRACT— Where parties entered into deed of settlement in respect of foreshadowed claim for further provision from deceased estate pursuant to Pt IV of the Administration and Probate Act 1958 — Where will referred to some parcels of land in colloquial terms and other parcels of land by registered title — Where solicitor relied on inventory of assets prepared by probate clerk and wording of the will and did not undertake title searches — Where both parties to the deed mistaken as to the identification of the parcels of land — Whether mistake at common law or in equity — Whether rescission, rectification or setting aside the appropriate remedy — Where both parties submitted that deed should be set aside if a common mistake is found — Taylor v Johnson (1983) 151 CLR 422 — Svanosio v McNamara (1956) 96 CLR 186 — McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 — Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 536 — Associated Japanese Bank (International) Ltd v Credit du Nord SA [1988] 3 All ER 902 — Solle v Butcher [1950] 1 KB 671

COSTS — Where solicitor for plaintiff subpoenaed to give evidence at trial — Where subpoenaed witness seeks costs of compliance with subpoena — Where costs claimed are below scale — Where plaintiff accepts witness entitled to costs of travel, accommodation and time out of office — Where subpoenaed witness sought legal representation so that the findings made in this case do not adversely affect him in any future litigation — ASADA v 34 Players and one Support Person [2015] VSC 14 — Pyramid Building Society v Farrow Finance Corp Ltd [1995] 1 VR 464

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D S Barber	Cinque Oakley Senior
For the Defendant	Mr RB Phillips	Septimus Jones & Lee
For Mr J Brack, a non-party	Mr T Sedal	Lander & Rogers

HER HONOUR:

Introduction

The plaintiff seeks rectification of a settlement deed (‘the deed’) entered into with the defendant, who is his sister. Alternatively, he seeks an order setting aside the deed, or a permanent injunction restraining the defendant from enforcing the deed.

The plaintiff and the defendant are the adult children of Garth Rees, who died on 13 August 2012 (‘the deceased’). They are both beneficiaries under the deceased’s will made on 22 March 2012. At the date of his death, the deceased was the registered proprietor of certain parcels of land, which together made up the Rees farm property.

Probate of the deceased’s will was granted to…

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 Rees v Rees

Details

AGLC: Rees v Rees [2016] VSC 452
Case: [2016] VSC 452
Decision Date: 5 August 2016

CaseChat Overview and Summary

The dispute in Rees v Rees centred around a deed of settlement executed between the parties, which was intended to address a potential claim for further provision from a deceased estate under the Administration and Probate Act 1958. The will in question contained references to certain parcels of land, some identified in colloquial terms and others by registered title. The parties entered into the deed of settlement in reliance on an inventory of assets prepared by a probate clerk and the wording of the will, without conducting title searches. It transpired that both parties were mistaken about the identification of the parcels of land, leading to the dispute over whether this was a mistake at common law or in equity, and what remedy, if any, should be available.

The court was required to determine the nature of the mistake and the appropriate remedy. Both parties agreed that if a common mistake was found, the deed should be set aside. The court considered relevant cases such as Taylor v Johnson, Svanosio v McNamara, McRae v Commonwealth Disposals Commission, Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd, Associated Japanese Bank (International) Ltd v Credit du Nord SA, and Solle v Butcher to ascertain whether the common law or equitable principles applied and the appropriate remedy. The court had to balance the equities of the parties and the nature of the mistake to decide whether rescission, rectification, or setting aside was the appropriate remedy.

The court found that the parties' mistake was indeed a common mistake, which led to the deed being set aside. The court emphasised the importance of identifying the correct parcels of land and the reliance on the inventory and will wording without conducting title searches. Given the nature of the mistake and the equities of the parties, setting aside the deed was deemed the most appropriate remedy. In terms of costs, the court found that the subpoenaed witness, who was a solicitor for the plaintiff, was entitled to costs of travel, accommodation, and time out of office as the costs claimed were below scale. The court also considered the witness's request for legal representation to protect against any adverse findings in future litigation, referencing ASADA v 34 Players and one Support Person and Pyramid Building Society v Farrow Finance Corp Ltd.

The court ordered that the deed of settlement be set aside and made an order for the costs incurred by the subpoenaed witness, including costs for travel, accommodation, and time out of office, as well as the costs of legal representation sought to protect against future litigation.

Orders