High Court of Australia
High Court of Australia Gibbs C.J. Murphy, Wilson and Brennan JJ. Pukallus v Cameron [1982] HCA 63
ORDER Appeal dismissed with costs.
Cur. adv. vult.
The following written judgments were delivered:—
Nov. 4 Gibbs C.J.
I have had the advantage of reading the reasons for judgment prepared by my brother Wilson, and am in agreement with them. I have little to add.
Let it be assumed that the trial judge was correct in finding that both the appellants and the respondent intended that the bore, and the twenty-seven acres of cultivation, were to be included in the property sold. Nevertheless, it remained true to say that the common intention of the parties was that the only part of Portion 1154 that should be sold was subdivision 1, and that the total area of land to be sold was 1,910 acres 27 perches. That of course was because they had contracted under the common mistake that the bore and part at least of the cultivation was on subdivision 1. Further, they had no common intention as to where the boundary line of the land sold should go to ensure that the bore and cultivation were included within it if it was not the southern boundary line of subdivision 1. They did not advert to the possibility that the bore and the cultivation might not be on subdivision 1. Finally, they had no common intention to subdivide subdivision 2. In these circumstances, to order that the contract be rectified by fixing a boundary line that included part of subdivision 2 was both to depart from so much of the common intention of the parties as had been correctly expressed in the written contract and to formulate a term (as to the situation of the boundary) which neither party had intended to include in the contract. The Full Court was right in holding that there could be no rectification.
Although it does not affect the result, it may not be inappropriate to add that the case was one in which the appellants should have made sure that the land was surveyed before completion. Clause 4 of the conditions of sale was in the following terms:
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