Kyabram Property Investments Pty Ltd & Anor v Murray [2005] NSWSC 1202

Kyabram Property Investments Pty Ltd & Anor v Murray [2005] NSWSC 1202

The evidence showed that both the Plaintiffs and the Defendant intended the mortgage security to comprise the whole property known as Boala, about 730 hectares including the Old System land and licensed bore, but the mortgage documents mistakenly referred only to the Real Property Act land. That mistake in expressing the parties' common intention justified rectification of the mortgages to include the Old System land. The mortgage costs clause entitled the Plaintiffs to indemnity costs, and there was no reason to exercise the Court's discretion contrary to that contractual obligation.

Jurisdiction
Australia
Judgment Date
24 November 2005
Procedural Posture
Equity Proceedings for Rectification of Mortgages, With an Alternative Application for an Easement Under S.88 K of the Conveyancing Act 1919 (nsw) / Final Judgment
Outcome
Rectification ordered; Defendant ordered to pay the Plaintiffs' costs on an indemnity basis.
Legal Topics
['rectification' 'common Intention' 'mistake in Mortgage Documents' 'old System Land' 'indemnity Costs']
['contract' 'mortgage' 'equity' 'real Property'] ['rectification' 'common Intention' 'mistake in Mortgage Documents' 'old System Land' 'indemnity Costs']

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Procedural Posture

Equity Proceedings for Rectification of Mortgages, With an Alternative Application for an Easement Under S.88 K of the Conveyancing Act 1919 (nsw) / Final Judgment

Legal Issues

  1. 1 ['Whether the Plaintiffs and the Defendant had a concurrent intention at the time the finance offers were accepted and the mortgages executed that the mortgages would cover all of the property known as Boala, including the Old System land on which the licensed bore was located.' 'Whether the omission of the Old System land from the mortgages was a mistake justifying rectification.' "Whether the Defendant should pay the Plaintiffs' costs on an indemnity basis under the mortgage costs clause."]

Ratio Decidendi

The evidence showed that both the Plaintiffs and the Defendant intended the mortgage security to comprise the whole property known as Boala, about 730 hectares including the Old System land and licensed bore, but the mortgage documents mistakenly referred only to the Real Property Act land. That mistake in expressing the parties' common intention justified rectification of the mortgages to include the Old System land. The mortgage costs clause entitled the Plaintiffs to indemnity costs, and there was no reason to exercise the Court's discretion contrary to that contractual obligation.

Court Disposition

Rectification ordered; Defendant ordered to pay the Plaintiffs' costs on an indemnity basis.

Orders

  • ["Rectification of the Plaintiffs' mortgages ordered so as to include in the security the Old System land forming part of Boala." 'Defendant to pay the costs of the proceedings on an indemnity basis.' 'Orders made in accordance with the Short Minutes of Order initialled by Palmer J dated 24 November 2005.']