Wilson v Fitzsimons [2006] NSWSC 1318

Rectification of the mortgage is available for the plaintiff's unilateral mistake as it was induced by fraud, and is not barred by the impossibility of granting a first mortgage, as the Court may grant practical justice by ordering rectification for a second mortgage.

Parties: Plaintiff: Robine Enid Wilson; 1st Defendant: Christopher Ronald Fitzsimons; 2nd Defendant: Maria Angela Fitzsimons
Jurisdiction: Australia
Judgment Date: 27 November 2006
Procedural Posture: Application for Rectification of Mortgage Instrument / Ex Parte Hearing and Judgment
Outcome: Mortgage rectified
Legal Topics: Rectification, Mortgages, Unilateral Mistake, Fraud

Equity Rectification Mortgages Unilateral Mistake Fraud

Case Brief

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Full judgment text Downloadable case file Legal principles 5 Authorities cited 5 Party arguments 1 Amounts and remedies 2

Parties

Robine Enid Wilson

Plaintiff

Christopher Ronald Fitzsimons

1st Defendant

Maria Angela Fitzsimons

2nd Defendant

Procedural Posture

Application for Rectification of Mortgage Instrument / Ex Parte Hearing and Judgment

Legal Issues

1 Whether rectification of the mortgage instrument is available for a unilateral mistake induced by fraud
2 Whether rectification is barred by the inability to perform the contract by a grant of a first mortgage

Ratio Decidendi

Court Disposition

Mortgage rectified

Orders

Order for rectification of the mortgage from the plaintiff to the first and second defendants for an advance of $600,000, with the Torrens Title reference rectified to specify 13/22 Wylde Street, Potts Point, folio identifier 13/SP63601.
First and second defendants ordered to pay the plaintiff's costs of the amended summons.