Muriti v Prendergast [2005] NSWSC 949

New South Wales Supreme Court

CITATION : Muriti v Prendergast [2005] NSWSC 949

HEARING DATE(S) : 29,30,31/08/05

JUDGMENT DATE : 23 September 2005

JUDGMENT OF : Burchett AJ

DECISION : Question whether either of two particular proposed clauses should be included as a normal commercial term in leases to be entered into on settlement of contract which has been ordered to be specifically performed referred to an expert for inquiry and report.

CATCHWORDS : Contract - mistake - whether mutual or unilateral - effect - whether assent of solicitors to a proposed draft involves a contract to accept a document in that precise form and execute it - effect of a mistake (as to whether a draft contained a particular provision and whether the provision was in dispute) upon an agreement to refer disputes as to the form of the draft for expert determination - effect of Court's control of contract that is subject to an order for specific performance - power of Court to refuse to enforce a compromise - whether Court has a similar power with respect to an expert determination of a question arising in the specific performance of a contract under a Court order where determination affected by mistake - interests of justice in the circumstances.

Supreme Court Rules LEGISLATION CITED : Civil Procedure Act 2005

Taylor v Johnson (1983) 151 CLR 422 Tutt v Doyle (1997) 42 NSWLR 10 CASES CITED : Medsara Pty Limited v Sande [2005] NSWCA 40 Mohamed v Farah [2004] NSWSC 482

Vincent Carl Muriti (first plaintiff) Keanlong Pty Limited (second plaintiff) PARTIES : John Francis Prendergast (first defendant) Rolcross Pty Limited (second defendant) Worthbrook Pty Limited (third defendant)