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Pukallus v Cameron

High Court [1982] HCA 49; (1982) 180 CLR 447

Overview

Pukallus agreed to purchase land from Cameron. The land was described as 'Subdivision 1 of Portion 1154' and both parties thought it included a bore and 27 acres of cultivated land. It transpired that Subdivision 1 did not include the bore and cultivated land; that was included in part of Subdivision 2. Pukallus sought rectification claiming that there had been a common mistake.

At trial the judge ordered rectification, stating:

"I find that both the plaintiffs and the defendant intended that the bore, and the 27 acres of cultivation, were to be included in the property sold, and that the parties entered into the contract under a misapprehension that they were included."

This was overturned on appeal and a further appeal was made to the High Court. The High Court dimissed the appeal, finding no rectification possible.

The common intention of the parties was that only subdivision 1 of portion 1154 be sold. That was the case notwithstanding the mistake they had made about what was included in the land. To rectifiy the contract would then require subdividing part of another sub-division, the precise boundaries of which had not been determined. As rectification requires that the 'omitted ingredient' alleged 'be capable of such proof in clear and precise terms' there could be no rectification in this case.

Farmland

Facts (brief)

Pukallus agreed to purchase land from Cameron. The land was described as 'Subdivision 1 of Portion 1154' and both parties thought it included a bore and 27 acres of cultivated land. It transpired that Subdivision 1 did not include the bore and cultivated land; that was included in part of Subdivision 2. Pukallus sought rectification claiming that there had been a common mistake.

 

High Court

Chief Justice Gibbs

Agreed with Justice Wilson and added

[para 2] Let it be assumed that the trial judge was correct in finding that both the appellants and the respondent intended that the bore, and the twenty-seven acres of cultivation, were to be included in the property sold. Nevertheless, it remained true to say that the common intention of the parties was that the only part of Portion 1154 that should be sold was subdivision 1, and that the total area of land to be sold was 1,910 acres 27 perches. That of course was because they had contracted under the common mistake that the bore and part at least of the cultivation was on subdivision 1. Further, they had no common intention as to where the boundary line of the land sold should go to ensure that the bore and cultivation were included within it if it was not the southern boundary line of subdivision 1. They did not advert to the possibility that the bore and the cultivation might not be on subdivision 1. Finally, they had no common intention to subdivide subdivision 2. In these circumstances, to order that the contract be rectified by fixing a boundary line that included part of subdivision 2 was both to depart from so much of the common intention of the parties as had been correctly expressed in the written contract and to formulate a term (as to the situation of the boundary) which neither party had intended to include in the contract. The Full Court was right in holding that there could be no rectification. 

Justice Murphy

There was neither total failure of consideration or fraud with the result that there was no ground for equitable relief.

Justice Wilson

Rectification was not possible; the mistake concerned the content of the land, not any error in recording terms.

On the principles of rectification his Honour stated:

[para 9] The case raises no issue as to the principles which govern the rectification of a contract. Those principles are not in dispute. There need not be a concluded antecedent contract, but there must be an intention common to both parties at the time of contract to include in their bargain a term which by mutual mistake is omitted therefrom. So long as there is a continuing common intention of the parties, it may not be necessary to show that the accord found outward expression ...

[para 10] The second principle governing the rectification of a contract which is material to this case is that which requires the plaintiff to advance "convincing proof" that the written contract does not embody the final intention of the parties. The omitted ingredient must be capable of such proof in clear and precise terms. The Court must not assume for itself the task of making the contract for the parties. 

[footnotes omitted]

 

Applied to the facts Justice Wilson noted the difficulty of proving 'clear and precise terms'.

[para 11] ... the application of each of the principles I have mentioned creates difficulty for the appellants. In the first place, the term which it is sought to include in the contract is clearly inconsistent with the expressed description of the land to be sold. His Honour's statement that "the parties had not determined exactly how far south of the cultivation the boundary would go" suggests that the parties were prepared to engage if necessary in a further subdivision of that part of Portion 1154 which lay outside subdivision 1. But the evidence does not support any such suggestion. From beginning to end the sale was of subdivision 1 of Portion 1154. ... There is no evidence to support a finding of an intention to contract for the sale of the bore and cultivated area. The intention was to effect a transfer of subdivision 1 of Portion 1154, a parcel of land which was thought erroneously, to include the bore and cultivated area. If the mistake had been discovered before the conveyance was effected, the appellants could no doubt have avoided the contract. In view of the uncertainty surrounding the location of the boundary which was manifest throughout the negotiations it would clearly have been prudent for the appellants to have undertaken their own survey or to have insisted on the respondent fulfilling his undertaking in that regard. ...

[para 12] Secondly, even if a new boundary was in contemplation, the appellants face the difficulty of proving the precise term which it is said was agreed between the parties and which through mutual mistake was not incorporated in the written contract. It is not enough merely to prove that the bore and twenty-seven acres of cultivated land were intended to be included in the land the subject of the sale. Although the learned trial judge made a finding in those terms, he recognized that the evidence required the fixation of a new boundary line parallel to the present southern boundary to subdivision 1. ... In my respectful opinion, his Honour's conclusion is a rationalization of the evidence that might be supportable only if the established principles concerning rectification did not require convincing proof of the precise variation to the written agreement. Here there is no convincing proof. ...

[footnotes omitted]

Justice Brennan

Agreed the appeal shoudl be dismissed:

[para 10] ... Rectification could be decreed only upon proof that the parties intended that a further parcel of land, precisely identified, was to be included in the sale. In the absence of evidence of such an intention, the claim for rectification was bound to fail.  ... The mistake shared by Mr. Pukallus and Mr. Cameron was not a mistake as to the embodying of their intention in the written contract. The only mistake was a mistake as to what features were within the boundaries of the land sold. ...