Selen and Selen & Ors

In *Selen and Selen & Ors*, Austin J of the Supreme Court of New South Wales considered a dispute concerning an Agreement and Deed of Family Arrangement. The plaintiff sought rectification of the Deed and specific performance of its terms, which involved the transfer of parts of a farming property to the parties' sons. The defendants, including the wife, argued that the Deed was not binding due to uncertainty and incompleteness, and also raised the defence of laches.

The central legal issues before the court were whether the Deed was intended to create legal relations, and if so, whether its terms were sufficiently certain to be enforceable. The court also had to determine if the plaintiff was entitled to equitable relief in the form of rectification and specific performance, considering the defence of laches and the possibility of equitable estoppel.

Austin J found that an objective assessment of the parties' conduct and the circumstances surrounding the creation of the Deed indicated a clear intention to create legal relations. Despite arguments regarding uncertainty, the court determined that there was a common intention to include a term omitted by common mistake, justifying rectification. The defence of laches was rejected as the wife was not unconscionably prejudiced by the delay and had not suffered hardship. The court also found that the plaintiff had not established equitable estoppel.

Consequently, the court ordered the rectification of the Deed to clarify the descriptions of the land parcels and to include a provision for transfer within a reasonable time. The court further declared that the plaintiff was entitled to specific performance of the rectified Deed and ordered the defendants to execute all necessary documents to give effect to this, with the Registrar empowered to act in default.