Muriti v Prendergast [2005] NSWSC 281

New South Wales Supreme Court

CITATION : Muriti v Prendergast [2005] NSWSC 281

HEARING DATE(S) : 21/02/05, 22/02/05, 23/02/05, 02/03/05, 03/03/05

JUDGMENT DATE : 11 April 2005

JUDGMENT OF : White J

DECISION : See paras 199 - 201 of judgment.

CATCHWORDS : CONTRACT - RECTIFICATION - Common intention - Mutual mistake - Whether clear and convincing evidence of intent displaced presumption that the parties intended to be bound by the terms of their written agreement - Relevance of agreement containing obvious mistakes - Whether intention as to effect document was to achieve clearly predominated over intention to be bound by the terms in the instrument - Whether common intention sufficiently precise to permit rectification - Proposed term must give effect to the parties' intention and not go beyond it - Alternative formulations of proposed term did not indicate that common intention lacked necessary precision - Parties agreed on literal construction - Rectification available for more abundant caution. - RES JUDICATA - Previous proceedings for specific performance - Prior consent orders - Anshun estoppel - Issue estoppel - Whether there has been a merger of the cause of action in the decree for specific performance - whether the issues raised in these proceedings should have been raised before the order for specific performance was made - Whether plaintiffs had elected between inconsistent remedies - Whether the degree of conformity between the instrument and the true agreement was an issue raised in the previous proceedings - Whether previous order was a final order which completely disposed of the proceedings - Scope of liberty to apply - Held previous order final - Order for rectification can be made in new proceedings after a decree for specific performance. - RES JUDICATA - Issue estoppel - Defendants estopped from denying that the conditions precedent to a consent order for specific performance had been met. - IMPLIED TERM - Release or indemnity of mortgagor - Whether term is necessary for the reasonable or effective operation of the contract - Whether term is so obvious as to go without saying. - EVIDENCE - Failure of the defendant to give evidence in civil proceedings - Jones v Dunkel applied.