Myall Arm Pty Ltd v Nicole Marie Pty Ltd
[2010] QSC 377
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Myall Arm Pty Ltd v Nicole Marie Pty Ltd[2010] QSC 377
- Add to List
Myall Arm Pty Ltd v Nicole Marie Pty Ltd[2010] QSC 377
Myall Arm Pty Ltd v Nicole Marie Pty Ltd[2010] QSC 377
SUPREME COURT OF QUEENSLAND
CITATION: | Myall Arm Pty Ltd v Nicole Marie Pty Ltd [2010] QSC 377 |
PARTIES: | MYALL ARM PTY LTD ACN 000 039 707 |
FILE NO/S: | BS4619/10 |
DIVISION: | Trial |
PROCEEDING: | Claim |
ORIGINATING COURT: | Supreme Court, Brisbane |
DELIVERED ON: | 1 October 2010 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 6, 7 September 2010 |
JUDGE: | Margaret Wilson J |
ORDER: | THE ORDER OF THE COURT IS THAT: 1.It is declared that the Plaintiff and the Defendant on or about 24 September 2009 agreed to vary the terms of a Lease bearing registration number 711369147 made between the Plaintiff as Lessor and the Defendant as Lessee being a Lease of the premises located at Lot 9 on BUP 5916 County of Stanley Parish of North Brisbane detailed on Title Reference 16549066 located at Suite 9, Level 2, 35 Astor Terrace Spring Hill in the State of Queensland as follows: (a)merely by providing to forgo the annual increase of rental by 4% otherwise due under clause 2.3.1 of the Lease in respect of the Lease year commencing 15 October 2009 and ending 14 October 2010; and (b)that otherwise the terms of the Lease remained unchanged. 2.The Registrar of Titles is directed to rectify the title in the freehold land register to the leasehold estate over Lot 9 on BUP 5916 County of Stanley Parish of North Brisbane detailed on Title Reference 16549066 by restoring in Item 6 – Term of Lease the following: (i)"Expiry Date: 14.10.2013;" (ii)"Options: 5 years" 3.The Defendant take all such steps and do all such things as may be necessary to give full effect to Order 1 including within seven (7) days of the request by the Plaintiff the due execution and delivery to the Plaintiff’s Solicitors of a Form 13, in a form capable of immediate registration, correcting the freehold land register to accord with order 1.
|
CATCHWORDS: | EQUITY – general principles – mistake – equitable remedies – rectification – unilateral mistake – where plaintiff leased commercial suite to defendant – where term of lease was six years commencing 15 October 2007 – where plaintiff decided not to enforce 4 percent rent increase payable under lease on 15 October 2009 for one year – where plaintiff instructed solicitors that it would waive 4 percent rent increase – where solicitor informed respondent of rent increase waiver via telephone – where solicitor’s and defendant’s version of conversation differed – where solicitors prepared amendment of lease form – where plaintiff incorrectly signed form – where defendant inserted expiry date of 15 October 2010 and "nil" option on to form in small writing – where defendant returned form to solicitors with a post-it note stating "I don’t think you guys witnessed signature!..." – where amendment of lease was registered – where the effect of the amendment was that, inter alia, the expiry date was amended to 15 October 2010 – whether court should accept solicitor’s or defendant’s version of the telephone conversation – whether equitable relief should be granted for plaintiff’s unilateral mistake – whether defendant’s conduct unconscionable Corporations Act 2001 (Cth) Land Titles Act 1994 (Qld) Property Agents and Motor Dealers Act 2000 (Qld) Supreme Court Act 1995 (Qld) Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259, applied Eroc Pty Ltd v Amalg Resources NL [2003] QSC 074, considered Leibler v Air New Zealand Ltd [1999] 1 VR 1 at 14, applied Riverlate Properties Ltd v Paul [1975] Ch 133, applied Taylor v Johnson (1983) 151 CLR 422, applied Tutt v Doyle (1997) 42 NSWLR 10, applied |
COUNSEL: | R A Perry SC, I Erskine for the plaintiff H P Bowskill for the defendant |
SOLICITORS: | Q5 Law for the plaintiff Brian Bartley & Associates for the defendant |
- MARGARET WILSON J: The Astor is a complex of commercial and residential units at Spring Hill. Myall Arm Pty Ltd (the plaintiff) owns three of the commercial units, including suite 9 on level 2, which is described as lot 9 on BUP 5916 (title reference 16549066). The plaintiff leased lot 9 to Nicole Marie Pty Ltd (the defendant) pursuant to registered lease 711369147. This proceeding is concerned with the amendment of the lease in 2009.
- The term of the lease was 6 years from 15 October 2007, expiring on 14 October 2013 with an option to renew for five years. The annual rental was to be increased by 4% on each anniversary of the commencement date.
- On 22 December 2009 an amendment of the lease was registered (dealing number 712953073). The effect of the amendment was as follows:
(a) The expiry date was amended to 15 October 2010;
(b) The option was deleted;
(c) There was to be no rent increase on 15 October 2009. This concession was not to affect future rent increases.
- By a claim and statement of claim filed on 6 May 2010 the plaintiff seeks –
"1.A declaration that the Plaintiff and the Defendant on or about 24 September 2009 agreed to vary the terms of a Lease bearing registration number 711369147 made between the Plaintiff as Lessor and the Defendant as Lessee being a Lease of the premises located at Lot 9 on BUP 5916 County of Stanley Parish of North Brisbane detailed on Title Reference 16549066 located at Suite 9, Level 2, 35 Astor Terrace Spring Hill in the State of Queensland as follows:
(a)merely by providing to forego [sic] the annual increase of rental by 4% otherwise due under clause 2.3.1 of the Lease in respect of the Lease year commencing 15 October 2009 and ending 14 October 2010; and
(b)that otherwise the terms of the Lease remained unchanged.
- A Direction to the Registrar of Titles to amend the Title Deed comprising Title Reference 16549066 by reinstating in respect of the information on the Title Deed with respect to the Lease registration number 711369147 the following:
(i)'Expiry Date: 14 October 2013';
(ii)'Options: 5 years.'
- An injunction or orders requiring the Defendant to take all such steps as may be necessary to give effect to the order for rectification, or alternatively, the terms of the Varied Lease.
- Such further or other order as this Honourable Court may deem meet.
- Interest pursuant to the Supreme Court Act 1995.
- Costs on an indemnity basis, alternatively, on the standard basis."
Myall Arm Pty Ltd
- The plaintiff was incorporated over 70 years ago. Mr Eldred Wilson (who is known as Mr Tiny Wilson) has been a director since 1946. The other directors are his wife Mrs Esme Wilson, who was appointed in 1971, and his son and daughter-in-law Peter and Cheryl Wilson, who were appointed in 2009.
- Mr Tiny Wilson ("Mr Wilson") and his wife are retired and live on the Gold Coast. He is now aged 88. He is an experienced landlord, and despite his advanced years and faltering voice, very much in charge of the company's affairs. The other directors defer to him, and he reports to them informally from time to time.
- Mr Peter Challen, the principal of Hawthorn Cuppaidge & Badgery ("HCB"), has been Mr Wilson's solicitor for about 15 years. Most of the instructions Mr Challen has received from Mr Wilson have related to the affairs of the plaintiff company, although he has also attended to the drafting of wills. According to Mr Challen, although he met Mr Wilson early on in their professional relationship, they generally do not meet face to face, as Mr Wilson generally gives his instructions by telephone or post; he does not use email or fax.
- The plaintiff retained Knight Frank (Aust) Pty Ltd to manage the properties at Spring Hill for it. Knight Frank provided monthly management reports to Mr Wilson, which he studied closely. In between monthly reports, Mr Wilson regularly had conversations with the property manager looking after the plaintiff’s three premises in the Astor. From at least August 2009 the property manager was Ms Natalie Warland. Mr Wilson thought she was very thorough.
- The property manager at Knight Frank acted as the conduit for communications between Mr Wilson and the defendant. There was no direct contact between them.
Nicole Marie Pty Ltd
- The defendant is the trustee of The Glenn Sterling Family Trust. Its directors are Dr Glenn Sterling and his wife Mrs Nicole Sterling, both of whom were appointed in 2007.
- Dr Sterling is a gynaecologist. He is a director of a fertility clinic conducted on the premises and known as the Life Fertility Clinic. Dr Sonya Jessup, also a gynaecologist, is his business partner.
- Some years ago Dr Sterling had rooms in the professional suites attached to the Wesley Hospital. It is not clear whether he (or an entity associated with him) owned the premises or was the lessee of them. At any rate, he gained experience of the procedures and forms associated with subletting premises at the Wesley.
- Before moving to The Astor, Dr Sterling (or an entity associated with him) leased premises at the Brisbane Private Hospital. The relationship he and his then business partners had with the landlord there was apparently not good: his desire for security of tenure was apparently a reason why he vacated those premises.
- Dr Sterling thought that suite 9 in The Astor would be an ideal location for the Life Fertility Clinic because there was already a day surgery next door, whose facilities he could use for some of his work. The fit-out of the fertility clinic cost $500,000. It is not clear which entity bore that expense: it may well not have been the defendant.
The defendant’s complaints about the building
- Dr Sterling had many complaints about the building from early in the tenancy – including the carpark, the lifts, the common area, leaking guttering and the air conditioning. Usually he had staff members take up his complaints with Knight Frank by email, although he entered the fray himself on occasion. Mr Wilson’s attitude was that those matters were the responsibility of the body corporate, which was managed by Body Corporate Services Pty Ltd.
- On 10 February 2009 Dr Sterling wrote to Ms Suzanne Ellicott of Knight Frank with a long list of matters he considered ongoing problems. His letter ended –
"I look forward to meeting with you very shortly to discuss the above matters fully and to receive rectification advice from you. For the moment I have not made any payment of body corporate fees and will not be doing so until the above matters are rectified. Furthermore because of the failure of the body corporate to attend to these matters promptly I am currently seeking legal advice to break my lease and seek alternate premises that are more adequately serviced.
Of course we will [be] seeking compensation for the fit-out of our premises, if and when our lease is broken."
- On 24 February 2009 he sent an email to Ms Ellicott (cc Gerry White) –
"We anticipate terminating our lease based on the all the [sic] emails that have been sent to you both.
I have been advised that we have more than enough grounds to terminate. I will be in touch with a date that we will move out in due course."
In cross-examination Dr Sterling agreed that it was "probably an exaggeration" to say they (presumably the defendant) had been advised they had more than enough grounds to terminate the lease. Prior to writing the letter of 10 February 2009, he had had a telephone conversation with his solicitor Mr Paxton-Hall about other matters, and had mentioned that they were having a lot of problems with the building. Mr Paxton-Hall had advised him that "if [they] pursued it further…[they] could probably make certain grounds to get out of it." That seems to have been the extent of the advice obtained.
- Dr Sterling had discussions with DTZ Australia (Qld) Pty Ltd, real estate agents, about sub-letting the premises. It is not clear when these discussions started. Included in the bundle of documents admitted into evidence as exhibit 1 are an invoice from DTZ to "Life Fertility attn. Glen Sterling" dated 1 September 2009 for $1400 for listing the property and an "Appointment of real estate agent" document in Form 21a under the Property Agents and Motor Dealers Act 2000 (Qld). The latter was signed by Dr Sterling, but the date following his signature is indecipherable. It was signed on behalf of the agent on 28 September 2009.
- In the meantime, the exchange of emails between the defendant’s staff and Knight Frank continued. On 31 July 2009 the body corporate manager wrote to Dr Sterling telling him of steps taken to remedy a waterproofing problem.
Annual rent increase
- On 1 September 2009 Knight Frank wrote to "The Glen Stirling Family Trust" [sic] advising that the annual rent would be increased by 4% from 15 October 2009 as follows –
Current Annual Rental | % Inc. | New Annual Rental | New Monthly Rental |
$125,049.60 | 4% | $130,051.58 | $10,837.63 |
On 4 September 2009 it sent another letter advising of a 4% increase in the rent for the car parking bays occupied by the defendant, also effective 15 October 2009 as follows –
Current Annual Rental | % Inc. | New Annual Rental | New Monthly Rental |
$10,483.20 | 4% | $10,902.53 | $908.54 |
- Knight Frank sent Mr Wilson its Monthly Management Report for August 2009 about a fortnight after the end of the month. They attached to it a copy of Dr Sterling’s letter of 10 February 2009 and another from his office co-ordinator of 13 July 2009. Mr Wilson read the material and then telephoned Ms Warland. He surmised that Dr Sterling’s practice might be in difficulty because of the prevailing economic climate, but was unwilling to allow him to "break the lease". He told Ms Warland that he would waive the 4% rent increase for one year. Ms Warland suggested he contact his solicitor about amending the lease.
Mr Wilson’s instructions to Hawthorn Cuppaidge & Badgery
- Mr Challen was overseas on vacation from 20 September to 18 October 2009. Mr Leslie Priddle, a solicitor who has been employed by the firm for about 10 years, was in charge in his absence. Mr Priddle’s expertise and experience were in taxation law and succession. Leasing and lease related work was ordinarily the province of Mr Challen.
- Mr Wilson telephoned HCB. He had a conversation with Mr Priddle on 21 September 2009.
- According to Mr Wilson, he and Mr Priddle had not previously met or spoken by telephone. By contrast Mr Priddle told the Court that he had known Mr Wilson for some years; he said that when Mr Challen was away, Mr Wilson would speak to him.
- Mr Wilson’s evidence was that he instructed Mr Priddle that he would waive the 4% rent increase for one year, provided Dr Sterling paid the costs of amending the lease.
- Mr Priddle gave evidence of receiving a telephone call from Mr Wilson, who told him that he did not wish to enforce the 4% rent increase due on 15 October 2009 –
"...because the tenants were nice people, they were involved in the fertility business, and as he understood that with the local economic conditions, they would be doing it tough." [sic]
He recalled Mr Wilson being very definite that the concession was for 12 months only, after which the provisions of the lease were to be enforced. Mr Priddle gave evidence of having told Mr Wilson that he would prepare a document to give effect to this, and that he would be back in touch with him.
- Mr Priddle then refreshed his memory from a diary note of the conversation.
- In cross-examination Mr Priddle was quite definite that Mr Wilson had not said that the concession was conditional on the tenant’s paying any costs associated with doing what was envisaged. He said costs first came into his mind at a later date, when he wrote the letter to Mr Wilson dated 8 October 2009 (drafted on about 28 September) to which I will turn shortly.
- After speaking with Mr Wilson, Mr Priddle obtained HCB’s file in relation to the lease. He saw that solicitors from Freehills had previously acted for the defendant. He contacted Mr Blue of that firm, who said he was not acting for Dr Sterling in relation to lease matters.
Conversation between Mr Priddle and Dr Sterling on 24 September 2009
- Mr Priddle telephoned Dr Sterling’s clinic on 23 September 2009 and left a message. Dr Sterling called him back the next day (Thursday 24 September 2009), when they had a conversation. Their respective versions of the conversation are significantly different.
Mr Priddle’s version
Mr Priddle recalled that Dr Sterling seemed quite tense at first, but that he seemed to relax as he told him why he was calling. Mr Priddle told him that the plaintiff would not enforce the 4% rent increase; that this would be for 12 months only; and that this would have to be documented. Dr Sterling said that was very good, and thanked him.
There was no discussion of changing any other provision of the lease.
Dr Sterling said he was unhappy with the management of the building by Knight Frank. He said he was concerned that other tenants were unhappy; it could even lead to them leaving the building.
Dr Sterling did not complain about the state of the building, as opposed to the management of it. He did not raise the prospect of his leaving the building or terminating the lease.
There was no discussion of what costs which might be occasioned by the plaintiff’s proposal.
Dr Sterling’s version
Dr Sterling gave the following evidence of the conversation when asked to exhaust his memory about it.
Mr Priddle told him the owner of the premises was not going to apply the annual increase in the rent. He could not recall whether the annual increase was "3% or 5% or something like that." He said he replied –
"Gee, not often you get news – good news from lawyers. It’s fantastic."
He proceeded to say to Mr Priddle –
"You will know through Knight Frank that we’ve had a lot of issues with this building."
He recalled referring to the garage being filthy, the bins not being emptied, and the ceiling leaking above where he was sitting. His evidence continued –
"And I said, 'Look at the end of the day, this – you know, we want out of this lease. ' I can’t recall whether at this stage we’d actually – I’d certainly spoken to DTZ, and I said that we’d been in contact to sublease the premises out, but we want out of this lease. And I said, you know, 'It’s just so many problems here. ' It was having an impact upon our patients, and I wanted things attended to. But because they weren’t being attended to, I wanted out of the lease."
Mr Priddle said that the plaintiff’s decision not to increase the rent would have to be formalised. Dr Sterling replied –
"That’s fine, send it up. …Send the paperwork up. I’ll make the changes and I’ll send it back and we’ll see how we go."
He told Mr Priddle he was familiar with the necessary paperwork. The following exchange with senior counsel for the plaintiff occurred in cross-examination:
"You also say that you and Priddle agreed that you would make some amendments to the document he sent you, and then he would take it back to his client to see what his client's attitude was, don't you? – Yes.
Thank you. Now, that's two things that were agreed in that meeting. What else was agreed, do you say? – We didn't agree on what would happened [sic] with regards to when I wrote the change of the lease, what would happen from there on in. No, not at all.
Didn't you tell me a moment ago that you agreed that if your version of the conversation be accepted, you and Priddle agreed that you would make changes to ––? – Yes.
––whatever document he sent you, and then Priddle would take it back to his client to see what his approach was?—He said he'd – I said that I knew the paperwork, he'd send it up. I said I'd make the changes, send it back, and see how we go. I don't know whether that's an agreement or if it's just that's what's going to happen, but––
Well, that's what you anticipated, if your version be accepted? – Yes, that's what I thought would happen.
He gave evidence of saying he would change the form to allow him to get out of the lease. But they did not discuss a termination date of 15 October (by which I assume he meant 15 October 2010): at that stage he had not discussed it with Dr Jessup or contacted his bank.
In evidence in chief, Dr Sterling said that Mr Priddle raised the issue of costs. He said that Mr Priddle mentioned –
"...the amount that ended up being the tax invoice."
Mr Priddle’s note of the conversation
- Mr Priddle made a diary note of the conversation in these terms –
"24/09/09 T/c in Dr Stirling when
matter discussed & LP informed
Dr S of clients decision to forego [sic]
4% increase due in Oct 09 and all
other terms of lease to remain
on foot. LP said he would formalise
this. Dr S seemed very happy
with the concession."
- He explained his practice in making diary notes, which he handwrote on a blue notepad:
"…in making diary notes I endeavour to keep the coverage of the diary note to the topic that is the principal – or is the – is the subject of the file."
He said he did not record the conversation about Knight Frank because –
"I saw this as an ancillary matter to be borne in mind, but not to be part of a diary note that was about the extension – about the terms of the lease."
In cross-examination he said –
"Sometimes I record a lot of specific things, but in this instance it appeared to be a simple job to just forgo that rent rise. The file, as I understood it, would relate to a rent – to the forgoing of that rise and that alone. I saw the other matter about Knight Frank as being a periphery matter which I filed in the back of my mind to raise later when I wrote a letter to my client."
Dr Sterling’s email and his note
- Dr Sterling sent an email to HCB at 10.21 am on 24 September 2009 – that is, on the same day as the conversation between him and Mr Priddle. It was in these terms –
"Dear Mr Priddle
I was delighted to receive your call today and I thank you and the owner of our property for your help in these hard times.
I will send a copy of this e mail to Knight Frank to confirm our conversation that the owner has generously agreed not to subject us to the annual 4% increase in our rent. The timing of your call was wonderful and will help us plan the next 12 months in a better light.
I can say that over the years I have not had good calls from lawyers but on this occasion, well … how nice.
Again thank you to you both.
Warm regards
Dr Glenn Sterling."
- He gave evidence of having made a note of his conversation with Mr Priddle some time within 12 to 36 hours of their conversation. In cross-examination he said he wrote it about the same time as he sent the email.
- Dr Sterling’s note and Mr Priddle’s diary note were included in the agreed bundle of documents for use at trial which was tendered jointly by the parties at the commencement of the trial. In opening his case, counsel for the plaintiff told the Court that the bundle contained a couple of file notes which were subject to proof and not the subject of the joint tender.
- When counsel for the defendant asked Dr Sterling if he wished to refer to his note to refresh his memory, counsel for the plaintiff objected. The objection was that the Court’s permission to use it was being sought after he had exhausted his independent recollection of the conversation, rather than before he started to recount his version of it. The objection was not upheld and counsel for the plaintiff’s application to have the note struck from the record was unsuccessful. In the event, Dr Sterling did not give any further evidence in chief by reference to the note. He was nevertheless cross-examined about its contents, and I will return to this shortly.
- Dr Sterling’s note was in these terms –
"![Myall Arm Pty Ltd v Nicole Marie Pty Ltd [2010] QSC 377](/judgmentview/image?name=71092.001.png&id=71092)
call Owners lawyers -
D/W Les Priddle
Returned his call
Owner happy payments ∴no ↑
rent for Oct 09 – Oct 10
Told Priddle unhappy with building
Want out of lease – Knight Frank
Advertising with DTZ now
?Amend form that they send
Will send soon
?? Fees –
(Priddle wants $490
? worth (not surprising!
it (Smaller fee for Govt too?)"
→ prob
The handwriting in the first five lines (ending "…unhappy with building") is a little smaller than that in the rest of the note.
- When asked in evidence in chief to describe his usual practice when making notes of conversations, he said –
"Well, I mean, I’m usually pretty busy during the day with patients waiting, so I – I mean, I get through a few patients. So I’ll do most of my paperwork in the evening before I go home rather than do it there and then.
Do you keep a notebook or a –– ? – I just tear off a bit of my consulting – a bit of paper and write notes on it and throw it behind my desk and sort it out at the end of the day.
All right. And what happens with those notes subsequently? – I either discard them down the track, or if it’s anything relevant, we just scan it into the computer or they’re [sic] file it in general filing.
All right. And do you keep hard copies of those documents? – not always.
Sometimes you do? – Sometimes we do."
Preparation of Form 13
- HCB has an open plan office. Ms Margaret Dacey, an experienced legal secretary/paralegal, was in the vicinity of Mr Priddle’s desk while he was speaking to Dr Sterling. When the call ended, Mr Priddle spoke with her about documenting the waiver of the rent increase. He said he was thinking of preparing a deed. As the lease had been registered under the Land Titles Act 1994 (Qld), she suggested using a Form 13 (headed "Amendment"). She printed a blank Form 13, and gave it to Mr Priddle, telling him she could fill out the first page from the lease document, but he would have to draft the amendment. He took up her suggestion.
- Ms Dacey completed the first page of the Form 13 as follows –
![Myall Arm Pty Ltd v Nicole Marie Pty Ltd [2010] QSC 377](/judgmentview/image?name=71092.002.png&id=71092)
- Mr Priddle handwrote the amendment, which Ms Dacey prepared as a typewritten schedule on the second page of the form. It was in these terms –
![Myall Arm Pty Ltd v Nicole Marie Pty Ltd [2010] QSC 377](/judgmentview/image?name=71092.003.png&id=71092)
Mr Priddle’s letter to Mr Wilson prepared on 28 September 2009
- On Monday 28 September 2009 Mr Priddle prepared a letter to Mr Wilson. It was ultimately dated and sent on 8 October 2009. The Form 13 prepared by Ms Dacey was enclosed. The letter was in these terms –
"We refer to the writer’s telephone conversation with you on the 23 September 2009 during which you instructed us to advise the tenant of Suite 9, 35 Astor Terrace that you do not wish to enforce or receive the 4% rent increase due on the 15 October 2009.
We have informed Dr Glen Sterling of this and he expressed his gratitude for your generosity in a very sincere way. We enclose a copy of his email of thanks for your information.
We have prepared an Amendment (Form 13) to the lease and request you peruse it and if in order sign it as indicated before a Justice of the Peace or Commissioner of Declaration. We suggest we do it this way to formalise and keep recorded the change of arrangements should there be an assignment of the lease or other significant event. We propose to charge $350.00 for legal fees and the registration fees will be $124.20 making a total of $509.20 including GST. The writer feels it would be appropriate for the tenant to pay this account in the circumstances. Are you happy for us to request the tenant to pay?
During the writer’s telephone conversation with Dr Sterling he asked me to pass on to you his and the other tenants dissatisfaction with the conduct of the managing agents Knight Frank. He said some tenants felt so strongly about this he is concerned they may leave. We didn’t discuss the concerns in detail but it might be as well to bear Dr Sterling’s comments in mind."
Mr Priddle’s email to Dr Sterling on 28 September 2009
- Also on 28 September 2009 Mr Priddle sent an email to Dr Sterling in these terms –
"Thank you for your very kind email of the 24th September 2009.
I have passed your thanks on to our client. As a lawyer it is always nice to pass on good news – that doesn’t seem to happen too often these days. I have also passed on your comments about Knight Frank to Mr Wilson.
I have suggested to our client that we lodge and register an Amendment (Form 13) to the lease to formalise and keep recorded the change of arrangements should there be an assignment or other significant event in the future. I shall be in touch when I have received instructions."
Mr Wilson’s execution of Form 13
- On 14 October 2009 HCB received a handwritten letter from Mr Wilson (dated 13 October 2009), together with the Form 13 in triplicate. Mr Wilson had signed and dated each copy of the form as follows –
![Myall Arm Pty Ltd v Nicole Marie Pty Ltd [2010] QSC 377](/judgmentview/image?name=71092.004.png&id=71092)
His signature had not been witnessed. Apart from his signature and the date, the form was in precisely the terms in which HCB had submitted it to him.
- Mr Wilson’s letter was in these terms –
"Dear Mr Priddle
I agree to your proposal that Nicole Marie Pty Ltd pay your Costs as it is to his interest to have it done legaly [sic].
With regards to the tenants concerns regarding Knight Frank they are there to look after our Interest and they ask the Body Corporate to maintain the Commercial Lift and refurbish it to a reasonable standard but are reluctant to do it but maintain about Seventeen floors above us with a majority of votes and maintain their lifts for the residential owners to a far better standard.
I have been advised that the Body Corporate is going to repaint the Body Corporate areas of the commercial areas and repair any damage.
Yours Faithfully
Myall Arm Pty Ltd
per Eldred Wilson"
Dr Sterling’s execution of Form 13
- Under cover of a letter dated 15 October 2009, Mr Priddle sent the documents which Mr Wilson had returned to him to Dr Sterling. The letter was in these terms –
"We refer to your recent communication regarding the above matter and now enclose the following:
- Form 13 Amendment (in triplicate); and
- our tax invoice for services rendered
Would you kindly arrange for the Form 13 to be executed by a director and return all 3 copies to our office together with the following cheques:
1. Department of Natural Resources $124.20 being registration fees
2. Hawthorn Cuppaidge & Badgery $495.00 being payment of tax invoice
Our client has instructed us that in view of the circumstances you may wish to be responsible for payment of our legal fees and outlays.
We look forward to receiving the signed documents and cheques in due course.
PLEASE DO NOT BEND OR FOLD THE DOCUMENTS AS THEY MAY BE REJECTED BY THE DEPARTMENT OF NATURAL RESOURCES."
- Dr Sterling told the Court that when he received this correspondence, he observed that the first page of the Form 13
"was completely blank, except for the area that I wanted to fill in."
He was surprised that Mr Wilson had signed and dated it. He read the second page –
"I mean, I briefly read it, I didn’t read through it thoroughly, but it was basically what we had agreed to on the phone."
He discussed the ideal date for ending the lease with Dr Jessup. He was concerned about lease payments on the $500,000 fit out, and he rang his bank to find out what he would have to pay them. On the first page of each copy of the Form 13 he inserted data into part 5 (amendment of lease details) in small, neat handwriting in black ink as follows –
![Myall Arm Pty Ltd v Nicole Marie Pty Ltd [2010] QSC 377](/judgmentview/image?name=71092.005.png&id=71092)
He did not initial these handwritten insertions. He signed the form on behalf of the defendant in blue ink. Then he put it aside, as he saw that his signature needed to be witnessed.
- Sometime after he inserted the data into part 5, Dr Sterling asked Mr JM Springer, a barrister, to witness his signature. Mr Springer did not read the documents, but required Dr Sterling to sign them again in his presence. Thus, the three copies of the Form 13 came to bear Dr Sterling’s signature twice, as well as that of Mr Springer as witness. They were dated 28 October 2009, although it is not clear when that date was written on them.
Documents received from Dr Sterling
- On 12 November 2009 Mr Priddle tried unsuccessfully to speak with Dr Sterling by telephone. His diary note records –
"Myall Arms [sic] – 35 Astor Tce 12.11.09
T/c out to Stirling [sic] re payment of a/c – Dr with patients – LP left message."
- Dr Sterling sent HCB’s letter of 15 October 2009 back to them together with the Form 13 in triplicate and the cheques they had requested. HCB received this material on 19 November 2009. There was a post-it note attached to the letter in these terms –
"ATTN LES,
Dear Les, I don’t think you guys witnessed signature! Do we need to do it all again? Ta
GS"
The internet address of a contraception information service was printed across the bottom of the post-it note. The only other marking on the letter was a circle around the amounts of the registration fees and HCB’s tax invoice.
- Dr Sterling gave evidence of having placed a post-it note on each copy of the Form 13 –
"Because I’ve never received a blank document before with somebody’s signature on. You know, when I’m – and also I had changed the terms of the lease, so it needed to go back to them for verification for what I had changed or to sign off the changes that we had made."
Neither Mr Priddle nor Ms Dacey could remember whether those post-it notes were on the three copies of the Form 13. They were not in evidence.
Neither Mr Priddle nor anyone else at HCB observed that an expiry date of 15 October 2010 and "nil" options had been inserted on the front page of each copy of the Form 13.
HCB ask plaintiff to execute fresh Form 13
- On the assumption that the Form 13 had not been properly executed on behalf of the plaintiff, HCB wrote to Mr Wilson again on 23 November 2009. The letter was signed by Mr Priddle, although it may have been prepared by another staff member, Ms Emily Whitman (who was then either a recently admitted legal practitioner, or about to become so). Three fresh copies of the document were enclosed. They were exactly the same as those submitted to Mr Wilson the first time: that is, they bore no signature, no date, and no data had been inserted into part 5 (amendment of lease details). HCB told Mr Wilson that the three copies should be executed by two directors or a director and secretary in the presence of and witnessed by a justice of the peace or legal practitioner, and asked that they be returned to HCB for signing by the lessee. Ms Whitman made handwritten notations on the documents in pencil. She placed crosses against each of two lines above the word’s "Grantor’s/Mortgagor’s/Lessor’s Signature"; against the first line she printed "DIRECTOR" and against the second line "DIRECTOR / SECRETARY". She made exactly the same notations against two lines above the words "Grantee’s/Mortgagee’s/Lessee’s Signature".
- Perhaps not surprisingly, Mr and Mrs Wilson executed the document twice – in the place for execution by the lessor and in the place for execution by the lessee. A commissioner for declarations witnessed their signatures in each place. The original copy of HCB’s letter of 23 November 2009 and this version of the Form 13 (in triplicate) were received by HCB on 1 December 2009.
Form 13 executed by Dr Sterling signed by Mrs Wilson
- By this stage, Mr Priddle had gone on leave. Mr Challen looked at the letter and the enclosed forms when they arrived in the mail. He observed that Mr and Mrs Wilson had signed the three copies of the Form 13 for both the lessor and the lessee, which invalidated it. He also disagreed that there had been a necessity for a witness (having regard to s 127 of the Corporations Act 2001 (Cth) and the requirements of the Titles Office).
- On 4 December 2009 HCB wrote to Mr Wilson again. The letter was signed by Mr Challen. The three copies of the Form 13 which had been signed by Dr Sterling were enclosed. Ms Dacey had placed a cross and handwritten in pencil "Mrs Wilson" between the typewritten words "Myall Arm Pty Ltd" and Mr Wilson’s signature. In examination in chief, counsel for the plaintiff asked Mr Challen whether he was cognisant of the entries in part 5 (amendment of lease details) concerning the expiry date and the option. He responded –
"I wasn’t cognisant of those entries. I wasn’t cognisant of the content of the document generally, no."
His attention was focussed solely on having a second office-holder of the plaintiff sign the document.
- When Mr Wilson was asked in cross-examination whether he remembered reading the form before giving it to his wife to sign, he replied –
"No, it came from a solicitor’s [sic] and I expected it to be in order."
- Mrs Wilson signed the three copies of the Form 13 above her husband’s signature, and they were returned to HCB. When they were received in the mail, Mr Challen caused a yellow post-it note to be placed in the top right hand corner of the lessee’s copy. It was stamped "Received 10 December 2009" and Mr Challen wrote on it –
"Received Form 13 in triplicate duly signed by Mrs Wilson."
Form 13 registered
- On 22 December 2009 HCB lodged the Form 13 that had been received in the office on 10 December 2009 at the Titles Office. The amendment was registered on that day under dealing number 712953073.
Mr Wilson became aware of the changes
- On 28 January 2010 Ms Warland of Knight Frank received an email from Dr Sterling in these terms –
"Dear Natalie
As per the attached, you will see that our lease is due to expire in October 2010.
Would you be so kind as to inform us whether the owner would prefer the premises to be left fitted out with a financial consideration for 'making good' for the next tenant or whether the owner would like the premises 'made good' at the date of lease expiry.
Thank you.
Glenn Sterling."
The attachments were a copy of the registered amendment (Form 13) and a title search dated 4 January 2010 showing the registered amendment.
- In Knight Frank’s monthly management report to the plaintiff for January 2010 Ms Warland recorded the expiry date for this tenancy as 15 October 2010.
- When Mr Wilson received the January management report, he picked up the new expiry date, which he considered erroneous, and telephoned Ms Warland and Mr Challen on 8 February 2010. Mr Challen reviewed his firm’s file, and read the whole Form 13 for the first time. Only then did anyone on behalf of the plaintiff appreciate that Dr Sterling had inserted 15 October 2010 as the expiry date and "nil" options on the Form 13 he had signed.
Findings
- There is no reason to question the truthfulness or the reliability of the evidence of Mr Wilson.
- Mr Priddle gave his evidence carefully. He erred in his handling of the file, and he admitted doing so. I am satisfied that he answered questions to the best of his recollection, and that he was generally a reliable witness.
- Dr Sterling was a busy medical practitioner, frustrated by what he regarded as the unsatisfactory state of the building. Be that as it may, he was not an impressive witness. He presented as an arrogant and impatient man, who tried to bluster his way through his evidence. He purported not to have been concerned about the quantum of the rent increase which was due, not knowing whether it was 3% or 5%, and purported not to have been concerned at the thought of abandoning the fit out which had cost $500,000 if the defendant vacated the premises – although later in his evidence he spoke of having to discuss the termination of the lease with Dr Jessup and being concerned about lease payments on the $500,000 fit-out and what would have to be paid to the bank. He was disdainful of the legal process and of lawyers, at least those involved in lease work, and he resented their charges. By his own account, his attention to correspondence and note taking was somewhat haphazard.
- I accept Mr Wilson’s evidence of having instructed Mr Priddle that the defendant would have to pay the costs associated with the waiver of the rent increase. In this regard I find Priddle’s memory of his conversation with Mr Wilson unreliable. Of course it would have been fairly standard conveyancing practice to expect the tenant to pay the landlord’s costs of the amendment, but Mr Priddle did not usually do this type of work.
- There was nothing to suggest that the conversation between Mr Priddle and Dr Sterling on 24 September 2009 took place other than during normal working hours. Dr Sterling’s email was sent at 10.21 am. If, as Dr Sterling said in evidence in chief, the note was written 12 to 36 hours after the conversation, it must have been written considerably later than the email. But in cross–examination he said he "would have written" the note at about the time of the email he sent Mr Priddle.
- If, as Dr Sterling maintained –
- he told Mr Priddle that he "want[ed] out of the lease"; and/or
- they agreed that Mr Priddle should submit the paperwork to him, that he would make changes to it and send it back, and that they would "see how we go"; and/or
- they discussed costs and Mr Priddle gave him an estimate of costs,
it is curious that he did not mention any of these matters in the email. When challenged about this in cross-examination, he said that the waiver of the 4% rent increase was the only thing they had agreed on in the phone conversation. Of course, that is consistent with Mr Priddle’s version, and it is not a rational explanation for the omission of the other matters from the email if indeed they had been discussed.
- Even though he had not recorded Dr Sterling’s dissatisfaction with Knight Frank in his diary note, Mr Priddle told Mr Wilson about it in the letter he prepared on 28 September 2009. Given that Mr Priddle did that, it would have been extraordinary for him not to have also told Mr Wilson that Dr Sterling had said on the telephone on 24 September 2009 that he wanted to get out of the lease, and that they had agreed Dr Sterling should make changes to the documentation and send it back, and that they would see how they went – if that is what transpired.
- Even if Mr Priddle told Dr Sterling in their telephone conversation that the defendant would have to pay the plaintiff’s costs, I am satisfied that they did not discuss the quantum of those costs.
- I find that Mr Priddle did not turn his attention to the question of costs until shortly before he prepared the letter to Mr Wilson on 28 September 2009. I accept his evidence that, given what Mr Wilson had told him about why he was prepared to waive the rent increase, he felt the need to obtain express instructions before asking the defendant to pay the costs. I accept that he calculated the fees shortly before preparing the letter, on the basis of about one hour’s work.
- Dr Sterling was aware of the usual practice with respect to costs from his previous experiences in leasing matters.
- The estimate of the professional fees Mr Priddle gave Mr Wilson in the letter dated 8 October 2009 was $350. The tax invoice sent to Dr Sterling with the letter of 15 October 2009 was for professional fees of $450 plus GST, making a total of $495 (in addition to the registration fee).
- I accept Mr Priddle’s evidence that he did not give Dr Sterling any figure for the costs of documenting the waiver of the rent until he sent the correspondence of 15 October 2009.
- I reject Dr Sterling’s evidence that in the telephone conversation between him and Mr Priddle on 24 September 2009 –
(a) he said he "wanted out of the lease";
(b) they agreed that Mr Priddle should submit the paperwork to him, that he would make changes to it and send it back, and that they would see how they went;
(c) Mr Priddle told him the fees would be "the amount that ended up being the tax invoice".
- I reject Dr Sterling’s evidence that the note set out in paragraph 37 is a record of their telephone conversation. He may well have written the first six or even seven lines during or shortly after the conversation, but the rest of the note is more consistent with his subsequent musing on the defendant’s position. I am satisfied that the material following "??Fees" was not written until after he received Mr Priddle’s letter of 15 October 2009.
- I accept Mr Priddle’s version of the conversation.
- I find that, after he received the Form 13 signed by Mr Wilson, Dr Sterling decided to change it. He inserted the changed expiry date as 15 October 2010 and "nil" options.
- He returned HCB’s letter and the form in triplicate. He affixed the post-it note about the manner in which it had been executed on behalf of the plaintiff to the letter.
- Although those who handled the documents at HCB were remiss in a number of respects, they seem to have been careful in preserving all the papers associated with this matter. In all the circumstances, I reject Dr Sterling’s evidence that he placed a post-it note on each copy of the Form 13.
- When Mr Wilson signed the Form 13 on 13 October 2009, it accurately reflected his instructions to HCB. Then Dr Sterling altered it materially, executed it on behalf of the defendant, and returned it to HCB.
- I am satisfied that Dr Sterling’s conduct in inserting the new expiry date and "nil" options in the way he did (in small handwriting, in black ink in contrast to the blue ink used to execute the form, not initialling the insertions), and in returning the documents to the plaintiff’s solicitors with the post-it to which I have referred was designed to divert attention from the changes he had made.
- Dr Sterling did not have any further contact with HCB or anyone on behalf of the plaintiff, or see the Form 13 again.
- HCB were put off their guard, and did not check any more than the execution of the Form 13. Twice they sent documents to Mr Wilson for execution. The first time pencil markings to indicate where the signatures were to be placed were erroneously made both where the lessor (the plaintiff) had to execute the document and where the lessee (the defendant) had to do so. Mr and Mrs Wilson followed their instructions. The second time they sent the form (in triplicate) that had been executed by Dr Sterling on behalf of the defendant, without drawing Mr Wilson’s attention to the new expiry date and "nil" options Dr Sterling had inserted.
- In misplaced reliance on his solicitors to have checked that the documentation was in order, Mr Wilson had his wife sign the altered form in early December 2009.
Applicable principles
- As the defendant accepts, the plaintiff (by Mr Wilson) made a mistake.
- This is not a case of common mistake. Is it a case of unilateral mistake for which equity will grant relief?
- In the High Court case Taylor v Johnson[1], a vendor granted a purchaser an option to purchase two adjoining parcels of land each of about five acres for $15,000. The purchaser exercised the option, and the vendor executed a contract for the sale of the land to the purchaser. The vendor believed, both when she executed the option and when she executed the contract, that the purchase price was $15,000 per acre. On the evidence in that case, the Court drew the inference that when the vendor executed the option and when she executed the contract, the purchaser believed she was under some serious mistake or misapprehension about either the price or the value of the land and deliberately set out to ensure that she was not disabused of that mistake or misapprehension. In affirming the decision of the NSW Court of Appeal setting aside the contract, Mason ACJ, Murphy and Deane JJ said[2] –
"The particular proposition of law which we see as appropriate and adequate for disposing of the present appeal may be narrowly stated. It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension. What we have said is sufficient to demonstrate the broad basis of support which the authorities provide for that proposition. Moreover, and perhaps more importantly, it is a principle which is best calculated to do justice between the parties to a contract in the situation which it contemplates. In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party's actual mistake proceeds from wilful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it. Our comment can, for present purposes, be limited in its application to the case where the second party has not materially altered his position and the rights of strangers have not intervened."
- In the same case Dawson J said[3] –
"Fraud, misrepresentation or, perhaps, sharp practice falling short of actual fraud (see Riverlate Properties Ltd v Paul[4]) will suffice as a basis for rescission in the eyes of equity…"
- In Riverlate Properties Ltd v Paul the Court of Appeal considered these questions –
"Is the lessor entitled to rescission of the lease on the mere ground that it made a serious mistake in the drafting of the lease which it put forward and subsequently executed, when (a) the lessee did not share the mistake, (b) the lessee did not know that the document did not give effect to the lessor’s intention, and (c) the mistake of the lessor was in no way attributable to anything said or done by the lessee?"[5]
On the premise that the mistake was in no way attributable to anything said or done by the non-mistaken party, it answered these questions in the negative. But in discussing the relevant principles, the Court said[6] –
"Whether there was in any particular case knowledge of the intention and mistake of the other party must be a question of fact to be decided upon the evidence. Basically it appears to us that it must be such as to involve the lessee in a degree of sharp practice."
- The narrow principle invoked by the majority in Taylor v Johnson is not a comprehensive statement of the circumstances in which mistake by a contracting party will attract equitable relief.[7] As the authors of Meagher Gummow & Lehane’s Equity Doctrines & Remedies say[8] –
"The principle is thus bottomed in fraud in the wide equitable sense of unconscionable dealing."
- In Tutt v Doyle[9] Handley JA (with whom Brownie AJA agreed) cited this passage from Taylor v Johnson, and continued –
"However the majority also endorsed wider principles which entitle a court of equity to grant relief for unilateral mistake in cases not covered by this principle. They approved[10] the statement by James LJ in Torrance v Bolton,[11] that the power to set aside a contract for unilateral mistake was based on the ordinary jurisdiction of equity ‘to deal with’ any instrument or other transaction ‘in which the court is of the opinion that it is unconscientious for a person to avail himself to the legal advantage which he has obtained’. They also approved the decisions in Riverlate Properties Ltd v Paul[12] and Thomas Bates & Son Ltd v Wyndham’s (Lingerie) Ltd,[13] where rectification, and not rescission, was granted on this ground. They noted[14] that in the United States and Canada:
'…the rule that relief from contractual obligations on the ground of unilateral mistake will be granted where enforcement of the contract would be unconscionable is well established.'
In those jurisdictions relief is available where one party 'knows that the other party … might well be mistaken' or 'had reason to know of' the other’s mistake.[15]"
- And in Leibler v Air New Zealand Ltd[16] Kenny JA (with whom Winneke P and Phillips JA substantially agreed) said –
"The principles which govern an application for rectification of a contract on the ground of unilateral mistake can be briefly stated. If (1) one party, A, makes an agreement under a misapprehension that the agreement contains a particular provision which the agreement does not in fact contain; and (2) the other party, B, knows of the omission and that it is due to a mistake on A’s part; and (3) lets A remain under the misapprehension and concludes the agreement on the mistaken basis in circumstances where equity would require B to take some step or steps, depending on those circumstances, to bring the mistake to A’s attention; then (4) B will precluded from relying upon A’s execution of the agreement to resist A’s claim for rectification to give effect to A’s intention: cf Taylor v Johnson;[17] Maralinga Pty Ltd v. Major Enterprises Pty Ltd;[18] Johnstone v Commerce Consolidated Pty Ltd;[19] Commissioner for the New Towns v Cooper (Great Britain) Ltd;[20] Thomas Bates & Sons Ltd. v Wyndham’s (Lingerie) Ltd;[21] State Rail Authority of New South Wales v Ferreri;[22] Sole v Butcher.[23] Whether or not the mistake must be one which operates in favour of B or merely to the detriment of A is not entirely clear: cf. Maralinga Pty Ltd. v Major Enterprises Pty Ltd.[24] and Thomas Bates & Sons Ltd. v Wyndham’s (Lingerie) Ltd.[25]"
- Muir J reviewed the relevant authorities in Eroc Pty Limited v Amalg Resources NL.[26] His Honour observed[27] –
"In both Leibler and Tutt v Doyle, it is accepted that –
(a)The formulation of principle in the above passage from the joint judgment in Taylor v Johnson was not intended as a comprehensive statement of the only circumstances in which mistake by a contracting party would attract equitable relief; and
(b)For equitable relief to be available, it must be unconscionable or inequitable for the mistaken party to be held to the unrectified terms of the contract.
…
The requirement that the non-mistaken party’s conduct, in order to provide a basis for relief, must be unconscionable or inequitable has long had general acceptance."
- In Leibler Kenny JA considered whether rectification may be had where the party against whom it is sought was not aware of the other party’s mistake but suspected it or ought reasonably to have been aware of it. She discussed Australian and English authorities, opining that in Australia something less than actual knowledge may suffice. However, because of an unimpeachable finding of actual knowledge, she did not have to resolve the issue.[28]
- In Commission for the New Towns v Cooper (Great Britain) Ltd[29] Stuart-Smith LJ held that where the defendant intends the plaintiff to be mistaken and acts to divert the plaintiff’s attention from the mistake, actual knowledge of the mistake is not required. In those circumstances, the defendant’s "conduct is unconscionable and he cannot insist on performance in accordance to the strict letter of the contract…"[30]
- Counsel for the defendant submitted that Dr Sterling essentially made a counter-offer, using the form provided to him by Mr Priddle. She submitted that the terms of the variation of the lease were a matter of negotiation, and that there was nothing improper in the defendant’s proposing an additional amendment. But I have rejected Dr Sterling’s account of his conversation with Mr Priddle on 24 September 2009. There was no question of negotiation: the plaintiff was extending an indulgence to the defendant, the extent of which was clearly acknowledged by Dr Sterling in the email he sent that morning.[31]
- Counsel for the defendant stressed that the Form 13 was a short (two page) document, that the changes Dr Sterling made were not obscured or hidden in any way – they were in the middle of the front page, and that after he returned the letter and the Form 13 (in triplicate) to the plaintiff’s solicitors, he did not have any further contact with them or anyone on behalf of the plaintiff or see the Form 13 again. He was not aware of the plaintiff’s making any mistake. But he contributed to that mistake by making the changes and returning the documents in a way calculated to divert attention from the changes. In my assessment his conduct was unconscionable.
- That the plaintiff was represented by solicitors, whose ineptitude contributed to the mistake, does not absolve the defendant from the consequences of this unconscionable conduct.
- The plaintiff is entitled to succeed in its claim.
Orders
- I will hear counsel on the form of the orders, and on costs.
Footnotes
[1] (1983) 151 CLR 422.
[2] At 432 - 433.
[3] At 444.
[4] [1975] Ch 133.
[5] At 140.
[6] At 140.
[7] Eroc Pty Limited v Amalg Resources NL [2003] QSC 074 at [46] per Muir J.
[8] 4th ed para [14-049].
[9] (1997) 42 NSWLR 10 at 14-15.
[10] Taylor v Johnson (1983) 151 CLR 422 at 431.
[11] (1872) LR 8 Ch App 118 at 124.
[12] [1975] Ch 133 at 145.
[13] [1981] 1 WLR 505 at 514-516; [1981] 1 All ER 1077 at 1085-1086.
[14] Taylor v Johnson (1983) 151 CLR 422 at 432.
[15] Ibid.
[16] [1999] 1 VR 1 at 14.
[17] (1983) 151 CLR 422 at 431 per Mason ACJ, Murphy and Deane JJ.
[18] (1973) 128 CLR. 336 at 351 per Mason J, (with whom Menzies J agreed, Barwick CJ dissenting).
[19] . [1976] VR 463 at 469.
[20] [1995] 2 WLR 677 at 691-2 per Stuart-Smith LJ.
[21] [1981] 1 All ER 1077 at 1086 per Buckley LJ.
[22] (1990) NSW Conv. R. [55]-[512] per Young J.
[23] [1950] 1 KB 671 at 692-3 per Denning LJ.
[24] At 351.
[25] At 1086 per Buckley LJ, 1090 per Eveleigh LJ (Brightman LJ agreeing).
[26] [2003] QSC 074.
[27] At [46], [49].
[28] Leibler v Air New Zealand Ltd [1999] 1 VR 1 at 24.
[29] [1995] Ch 259.
[30] At 280.
[31] Contrast Eroc Pty Limited v Amalg Resources NL [2003] QSC 074, in which Muir J refused rectification for unilateral mistake where the parties were negotiating at arms length to conclude a commercial transaction, the matter about which one party was mistaken was a matter for negotiation, and each party, to the knowledge of the other, was financially sophisticated and obtaining legal advice.