SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd

The appeal concerned a dispute between SAMM Property Holdings Pty Ltd (appellant) and Shaye Properties Pty Ltd (respondent) regarding the sale of a commercial property. The primary issue was whether the contract of sale, as completed, accurately reflected the parties' common intention concerning the inclusion of Goods and Services Tax (GST) in the purchase price. The case was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the primary judge erred in refusing to grant rectification of the contract to provide that the purchase price was exclusive of GST. This involved considering the evidence presented, particularly in light of the rule in *Browne v Dunn*, and whether there was clear and convincing proof of a common intention that differed from the written contract. Additionally, the court considered the appellant's liability for interest under the contract for delayed completion.

The Court of Appeal upheld the primary judge's decision, finding that the appellant had failed to establish a common intention that the purchase price should be exclusive of GST. The court applied the equitable principles governing rectification, requiring proof of a common intention and a mistake in recording that intention. It also addressed the application of the rule in *Browne v Dunn*, noting that a failure to cross-examine on a particular piece of evidence does not automatically mean that evidence must be accepted, but it can be a factor in assessing procedural fairness. The court found no error in the primary judge's acceptance of the respondent's evidence.

Consequently, the appeal was dismissed. The court ordered that the GST component of the purchase price and the accrued interest, which had been paid into court, be paid to the respondent. The appellant was also ordered to pay the respondent's costs of the appeal and to provide a tax invoice within 14 days.