Land included in plan — Vendor claims land wrongly included — Whether common intention — Rectification — Specific performance ordered in favour of purchasers
By an agreement made on November 11 1987 the plaintiff company contracted to sell to the defendants a house and garden on a new development. The draft transfer referred to the land “edged red” on the plan annexed; this showed the land marked “plot 11” together with an adjoining tongue of land. The plan made available to the defendants for local searches and inquiries showed “11” on both the land and the tongue. Completion apparently took place on December 4 1987 and the defendants went into possession. The plaintiff refused to execute the transfer unless the transfer plan excluded the tongue of land and brought proceedings for rectification.
Held Plaintiff’s claim dismissed; defendants’ counterclaim for specific performance ordered.
The defendants assumed the tongue was included in the contract and the fact that building materials and a portacabin were on the tongue at various times was indecisive. Because there was no evidence of a common intention that the area of land in the contract did not include the tongue of land, there was no ground for ordering rectification of the contract plan to exclude the tongue. The mistake was unilateral only. The defendants were entitled to a transfer which included the tongue.
Michael Driscoll (instructed by Walker Martineau Stringer Saul) appeared for the plaintiff; and Jeremy Griggs (instructed by Julian Gattas & Co) appeared for the defendants.