Simic v New South Wales Land and Housing CorporationCitation:[2016] HCA 47Before:French CJ, Kiefel, Gageler, Nettle, Gordon JJDate:07 Dec 2016Case Number:S136/2016Read more

Simic v New South Wales Land and Housing CorporationCitation:[2016] HCA 47Before:French CJ, Kiefel, Gageler, Nettle, Gordon JJDate:07 Dec 2016Case Number:S136/2016Read more

References to a non-existent entity in the undertakings and applications, resulting from a common mistake, may be rectified to refer to the correct counterparty if there is clear evidence of the parties' actual or true common intention.

Parties
Applicant: Applicant (name not provided); Respondent: Respondent (name not provided)
Jurisdiction
Australia
Judgment Date
07 December 2016
Procedural Posture
Civil / Judgment
Outcome
rectification granted
Legal Topics
Performance Bonds, Rectification, Construction of Contract Terms, Common Mistake
Contract Law Banking Law Performance Bonds Rectification Construction of Contract Terms Common Mistake

Case Brief

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Parties

Applicant (name not provided)

Applicant

Respondent (name not provided)

Respondent

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether references to a non-existent entity in performance bonds and finance applications can be construed as references to the counterparty to the construction contract
  2. 2 Whether rectification is available to correct references to a non-existent entity resulting from a common mistake

Ratio Decidendi

References to a non-existent entity in the undertakings and applications, resulting from a common mistake, may be rectified to refer to the correct counterparty if there is clear evidence of the parties' actual or true common intention.

Court Disposition

rectification granted

Orders

  • References to the non-existent entity in the undertakings and applications are rectified to refer to the counterparty to the construction contract