Eid v Wollondilly Retirement Village Pty Limited [2003] NSWCA 109

Eid v Wollondilly Retirement Village Pty Limited [2003] NSWCA 109

The trial judge's findings that the parties had a common intention, continuing until exchange of contracts, that the sale include the five metre strip and the residue of Lot 1 not sold to the council were supported by the evidence, including the plan and the October 2000 correspondence. The land was identified with sufficient certainty, changes to other terms such as the deposit did not displace the common intention as to the land, a binding antecedent agreement was unnecessary, and any subdivision condition could be inferred with sufficient certainty. The appeal against rectification and indemnity costs therefore failed.

Jurisdiction
Australia
Judgment Date
29 April 2003
Procedural Posture
Conveyancing; Rectification of Contract for Sale of Land / Appeal From a Decision of Mc Clellan J in the Supreme Court Equity Division Ordering Rectification of a Written Contract
Outcome
Appeal dismissed; appellants ordered to pay the respondent's costs of the appeal on an indemnity basis.
Legal Topics
['rectification' 'common Intention' 'mistake in Written Contract' 'identification of Land to Be Conveyed' 'subdivision Approval' 'indemnity Costs']
['conveyancing' 'equity' 'contract Law' 'civil Procedure'] ['rectification' 'common Intention' 'mistake in Written Contract' 'identification of Land to Be Conveyed' 'subdivision Approval' 'indemnity Costs']

Case Brief

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Procedural Posture

Conveyancing; Rectification of Contract for Sale of Land / Appeal From a Decision of Mc Clellan J in the Supreme Court Equity Division Ordering Rectification of a Written Contract

Legal Issues

  1. 1 ['Whether the written contract should be rectified to include part of Lot 1 in DP997846 and a five metre strip of land.' 'Whether the land to be conveyed was identified with sufficient certainty.' 'Whether any common intention to include part of Lot 1 continued until exchange of contracts on 26 March 2001.' 'Whether rectification was unavailable because no binding contract was intended until formal exchange.' 'Whether any need for subdivision approval prevented rectification.' 'Whether the order for indemnity costs should be disturbed.']

Ratio Decidendi

The trial judge's findings that the parties had a common intention, continuing until exchange of contracts, that the sale include the five metre strip and the residue of Lot 1 not sold to the council were supported by the evidence, including the plan and the October 2000 correspondence. The land was identified with sufficient certainty, changes to other terms such as the deposit did not displace the common intention as to the land, a binding antecedent agreement was unnecessary, and any subdivision condition could be inferred with sufficient certainty. The appeal against rectification and indemnity costs therefore failed.

Court Disposition

Appeal dismissed; appellants ordered to pay the respondent's costs of the appeal on an indemnity basis.

Orders

  • ['Appeal dismissed.' "Appellants to pay the Respondent's costs of the appeal on an indemnity basis."]