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Trusts

I didn’t read it …

The background to Kusabs v Staite, which relates to the rectification of a lease, is complex and fact specific and highlights the need for parties to written documents to ensure an accurate record of the agreement that is being recorded.

Relevant considerations from the Court of Appeal include:

  • the standard of proof for rectification is the same as that for civil proceedings
  • cogent evidence is required to counteract the evidence of the parties’ intention as provided by signatures on the relevant documents
  • as noted in Davey v Baker (editor’s emphasis) at [40] “It is suggested that a mistake in the interpretation of an instrument or in the legal consequences of entering into an instrument is regarded as insufficient to ground rectification; rectification is a remedy to ensure the instrument contains the provisions which the parties intended it to contain, and not those which it would have contained had the parties been better informedThe remedy of rectification is strictly limited to a clearly established disparity between the words of the document and the intentions of the parties.
  • the observation that the evidential weight of a document may depend on the circumstances (Tartsinis v Navona Management)

References:

  • Kusabs v Staite [2019] NZCA 420
  • Davey v Baker [2016] NZCA 313
  • Tartsinis v Navona Management [2015] EWHC 57 (Comm)

 

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