The Stuart Park (D580060) Reserve Trust v Emibarb Pty Ltd [2006] NSWSC 603

The Stuart Park (D580060) Reserve Trust v Emibarb Pty Ltd [2006] NSWSC 603

The plaintiffs did not provide clear and convincing proof that, at the time of execution, both parties were under the same mistaken belief concerning the rent review provision; the evidence did not establish that the councillors (the relevant mind of the Council) shared the alleged mistake; rectification was therefore refused.

Parties
First Plaintiff: The Stuart Park (D580060) Reserve Trust; Second Plaintiff: The Council of the City of Wollongong; First Defendant: Emibarb Pty Ltd; Second Defendant: Vania Harrison; Third Defendant: Harry Haralambides
Jurisdiction
Australia
Judgment Date
23 June 2006
Procedural Posture
Suit for Rectification of Agreement for Lease and Deed of Lease / Judgment
Outcome
Rectification refused; Summons dismissed
Legal Topics
Rectification, Leases, Mutual Mistake
Equity Commercial Law Rectification Leases Mutual Mistake

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 10 Party arguments 2 Amounts and remedies 14
Sign in to unlock

Parties

The Stuart Park (D580060) Reserve Trust

First Plaintiff

The Council of the City of Wollongong

Second Plaintiff

Emibarb Pty Ltd

First Defendant

Vania Harrison

Second Defendant

Harry Haralambides

Third Defendant

Procedural Posture

Suit for Rectification of Agreement for Lease and Deed of Lease / Judgment

Legal Issues

  1. 1 Whether the lease documents should be rectified for mutual mistake regarding the rent review clause
  2. 2 Whether plaintiffs proved by clear and convincing proof that the parties had a concurrent intention at the time the lease was executed
  3. 3 Whether relevant mind is that of council employees or councillors

Ratio Decidendi

The plaintiffs did not provide clear and convincing proof that, at the time of execution, both parties were under the same mistaken belief concerning the rent review provision; the evidence did not establish that the councillors (the relevant mind of the Council) shared the alleged mistake; rectification was therefore refused.

Court Disposition

Rectification refused; Summons dismissed

Orders

  • Relief sought by plaintiffs refused; summons is dismissed.
  • Costs order to be heard if not agreed by 30 June 2006.