R v Hamilton Knight; Ex parte Commonwealth Steamship Owners Association [1952] HCA 38

280 HIGH COURT [1949.

H.C. or A. he exercised ' with great care and jealousy' . . . and ' with ae extreme caution' "'. The purpose of the present action is not to size Obtain a construction of a contract which will determine the future

aad rights and obligations of the parties, but to enforce the completion

ape of a sale pursuant to the exercise of an option of purchase, and it

Bich 3, does not appear to us to be a case in which a declaration of right

Williams J. should have been made except as incidental to the enforcement of the contract either by way of specific performance or damages.

As we have said, counsel for the appellants did not in the end press either the defence of mutual mistake or of a subsequent variation of the indenture, but they were argued to some extent and we think that we should express an opinion upon them. It has sometimes been said that the power of the Court to rectify a contract on the ground of mutual mistake is confined to cases where there was an actual concluded contract antecedent to the instrument which is sought to be rectified. The law was so stated by James V.C., as he then was, in MacKenzie v. Coulson (1) and by this Court in Australian Gypsum Ltd. & Australian Plaster Co. Ltd. v. Hume Steel Ltd. (2). But in Shipley Urban District Council v. Bradford Corporation (3) Clauson J., as he then was, held that the statement of James V.C. in MacKenzie v. Coulson (4) did not warrant the suggestion that the jurisdiction of the Court cannot be exercised so as to rectify an instrument which clearly does not give effect in some respect to the concurrent intention of the parties existing at the date of its execution unless a previously existing contract can be proved. The high authorities cited by Clauson J. (5) appear to us to show that this is right. The state- ment of the law in Australian Gypsum Ltd. & Australian Plaster Co. Lid. v. Hume Steel Ltd. (2), as in MacKenzie v. Coulson (4), should be read in the light of the facts of that case and confined to cases where the mutual mistake is sought to be established by reference to the terms of a previous contract. The views expressed by Clauson J. were completely adopted by Simonds J., as he then was, in Crane v. Hegeman-Harris Co. Inc. (6). His Lordship there gave judgment for the defendant on a counter- claim to rectify a contract in an action brought to enforce an award of an arbitrator (7). His Lordship said: " with his " (i.e., Clauson J.'s) " reasoning I wholly concur, and I can add nothing to his authority in the matter, except that I would say that, if