Rees v Rees

In Rees v Rees, the parties entered into a deed of settlement in relation to a claim for further provision from a deceased estate. The dispute arose from the identification of certain parcels of land mentioned in the will, which was drafted in colloquial terms and referred to some parcels of land by registered title. The solicitor for one party had relied on an inventory of assets prepared by the probate clerk and the wording of the will, without undertaking title searches. Both parties were mistaken about the identification of the parcels of land. The primary legal issues were whether the mistake was at common law or in equity, and whether the appropriate remedy was rescission, rectification or setting aside the deed.

The court found that the mistake was a common mistake, as both parties were mistaken about the identification of the parcels of land. The court held that the deed should be set aside if a common mistake was found, citing 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 as authority. The court found that the common mistake was material and that setting aside the deed was the appropriate remedy.

The court also considered the costs associated with the subpoena issued to the plaintiff's solicitor. The subpoenaed witness sought costs of compliance with the subpoena, which were below scale. The plaintiff accepted that the witness was entitled to costs of travel, accommodation and time out of office. The witness also sought legal representation so that the findings made in this case do not adversely affect him in any future litigation. The court considered ASADA v 34 Players and one Support Person and Pyramid Building Society v Farrow Finance Corp Ltd in determining the appropriate costs.

The court ordered that the deed of settlement be set aside and that costs be paid by the parties in accordance with the court's determination.