Aspro's Pty Limitied v Robert Frederick Hayter & Ors [2005] NSWSC 512

Aspro's Pty Limitied v Robert Frederick Hayter & Ors [2005] NSWSC 512

The contemporaneous leasing advice, solicitors' correspondence, disclosure statement, and later conduct of Mr Fountain provided clear and convincing proof that the parties agreed there would be no rent increases during the first five years and that the sixth-year CPI review would be non-accumulative. The contrary evidence of Mr Hayter was not accepted. Clause 6.2 therefore failed by common mistake to give effect to the parties' true agreement and should be rectified.

Jurisdiction
Australia
Judgment Date
01 June 2005
Procedural Posture
Application for Rectification of the Rent Review Clause of a Lease / Judgment After Hearing
Outcome
Rectification ordered
Legal Topics
['rectification' 'lease' 'rent Review Clause' 'common Mistake' 'unilateral Mistake']
['equity' 'contract Law' 'property Law'] ['rectification' 'lease' 'rent Review Clause' 'common Mistake' 'unilateral Mistake']

Case Brief

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Procedural Posture

Application for Rectification of the Rent Review Clause of a Lease / Judgment After Hearing

Legal Issues

  1. 1 ['Whether clause 6.2 of the Lease failed to express the true agreement between the parties as to rent review.' 'Whether the plaintiff established an identical corresponding contractual intention that rent reviews would be non-accumulative and commence in the sixth year.' 'Whether any mistake was common or, alternatively, unilateral.']

Ratio Decidendi

The contemporaneous leasing advice, solicitors' correspondence, disclosure statement, and later conduct of Mr Fountain provided clear and convincing proof that the parties agreed there would be no rent increases during the first five years and that the sixth-year CPI review would be non-accumulative. The contrary evidence of Mr Hayter was not accepted. Clause 6.2 therefore failed by common mistake to give effect to the parties' true agreement and should be rectified.

Court Disposition

Rectification ordered

Orders

  • ['Clause 6.2 of the Lease is to be rectified as sought in the Amended Summons by deleting "D = The Index Number for the quarter immediately prior to the date of commencement of this Lease" and inserting "D = The Index Number for the quarter ending 30 June 2002".' 'The parties are to bring in Short Minutes of Order...