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Key decisions

  • Simic v New South Wales Land and Housing Corporation [2016] HCA 47
  • The Queen v Kilic [2016] HCA 48
  • Australian Competition and Consumer Commission v Flight Centre Travel Group Limited [2016] HCA 49
  • New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50
  • ElecNet (Aust) Pty Ltd v Commissioner of Taxation [2016] HCA 51
  • Southern Han Breakfast Point Pty Ltd (in liquidation) v Lewence Construction Pty Ltd [2016] HCA 52
  • RP v The Queen [2016] HCA 53


Construction of terms – rectification

In Simic v New South Wales Land and Housing Corporation [2016] HCA 47 (7 December 2016) the Corporation required certain undertakings to be provided and Simic, as the Director of a company named Nebax (the third respondent), provided necessary details for the documents to an employee of ANZ (the second respondent).

The details given were wrong and referred to a non-existent entity, rather than the Corporation, as was required.

The Corporation later sought to enforce the undertakings and ANZ refused on the basis that the Corporation was not named in the documents. The Corporation argued that the documents could be construed as referring to it, or, alternatively, that the documents should be rectified to refer to it.

The High Court held that the documents were to be construed objectively by reference to their text, context and purpose in the usual way. On those principles, the undertakings could not be construed as referring to the Corporation. However, it was appropriate to rectify the documents as there was an ‘agreement’ between the parties in the sense of a ‘common intention’ (ascertained by reference to the parties’ words or actions) that the undertakings should operate by reference to the Corporation. The documents did not reflect that intention because of a common mistake. Gageler, Nettle and Gordon JJ jointly; French CJ and Kiefel J separately concurring.

Appeal from the Supreme Court (NSW) allowed in part, cross-appeals allowed.

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