Rectification of Documents

Author: John Tarrant
Publisher: Federation Press

That the equitable doctrine of rectification, primarily concerned with the rectification of contractual documents, is an area of law fraught with complexities, is often illustrated by pleaders who seek as part of the relief sought in a claim, the rectification of documents where that is not the appropriate remedy at all. It is well settled that where a court can discern the intent of the parties from an examination of the document as a whole, words made be supplied, omitted or corrected where it is clearly necessary to avoid absurdity or inconsistency (Fitzgerald v Masters (1956) 95 CLR 420 at 426-7). In such a case, rectification is not necessary (although what is arguably occurring is an informal rectification by the Court’s remedial interpretation). Where the mistake is more substantial though, rectification may be required. There then arises the apparent complexities associated with whether the mistake is a case of common or mutual mistake or a case of unilateral mistake (focusing on who made the mistake or had knowledge of the mistake). But as this book makes good through careful and thorough analysis, that classification system at times proves unhelpful and confusing — partly because in a number of cases courts have tried to import the requirements for one form of rectification into the other.

Instead this text admirably and persuasively advocates looking at the remedy of rectification through a different lens — that is, mistakes made in the recording of agreements and mistakes made during the formation of agreements. Mistakes made during the recording of agreements are appropriately rectified on the basis that if the parties are agreed that an agreement should contain certain terms, then they are obliged to ensure the agreement contains those terms. It does not matter how the mistake came about. Mistakes made during the formation of agreements are appropriately rectified on the basis that a party should not be permitted to enforce an agreement in its objectively agreed terms if it knew the other party was mistaken as to those terms. The remedy, in such a case, exists to prevent one party taking advantage of another’s mistake.

At a touch over 200 pages long, this book, derived from a thesis written by the author submitted in June 2017 and updated to 1 December 2019, is a text comfortably (and sensibly) read from start to finish over a weekend. In addition to examining the historical background of the remedy to support the classification of cases into rectification for mistakes in the recording of agreements and mistakes made during the formation of agreements, the book also touches upon the topics of cases of unilateral mistakes, rectification for fraud and rectification of deed polls and voluntary transactions.

Ultimately, as the book concludes, until the highest courts reject the current classification of rectification between cases of common or mutual mistake and cases of unilateral mistake, in favour of the approach contended for by the author, there will continue to be complexities and difficulties encountered in the application of the equitable doctrine of rectification.  This book provides a compelling case for how the law relating to rectification could be restated in a principled manner.