While the Courts won’t re-draw a legal document to improve it, they will, in certain cases, correct the document (“rectification”) if it clearly doesn’t set out what was intended.  This power exists in relation to a range of legal documents, some only of which are mentioned here.

Contracts

If the contracting parties agreed to something but the actual document does not show that ‘actual something’, a Court can correct the document, if both parties (or even in certain circumstances, one party) were at fault in overlooking the error in the document.

For example, in a recent SA Supreme Court case, the parties agreed a price including GST but did not include the GST amount in the written stated price.  The Court heard evidence concerning the discussions leading up to and including signing of the contract and ruled that the contract would be rectified to change the stated price to include the intended GST component.

Wills

Section 25AA (1) of the SA Wills Act 1936 states: “If the Court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the will be rectified so as to give proper expression to those intentions.

Trusts

The Supreme Court can rectify a trust deed, both in cases of mistake and in general, where it is in the interest of the beneficiaries.

Land Titles

Where the Certificate of Title contains an error, the Registrar General can alter it (if every interested party agrees) or if everyone doesn’t agree, a Court has the power to rectify.

Rectification is not just a matter of correcting obvious mistakes.  In such cases, the parties usually agree without the need for Court intervention.  The Court is only involved where there is some controversy about what was agreed and whether the document accurately records the agreement.  This involves evidence but it also may require a Court to conclude that the document would involve an unconscionable result unless rectified.  Therefore, before assuming there will be rectification of “disputed errors”, legal advice should be sought.

For further information please contact Peter on 8362 6400 or email Peter Jakobsen.  Join our mailing list to receive updates and advice on current issues.

  • Peter Jakobsen

    About the author: Peter Jakobsen

    Peter has a wealth of experience in many areas of the law but practises primarily in the areas of civil and commercial litigation including employment matters, negligence, defamation, leasing and contractual disputes and debt collection.

    Peter is a skilled and clever advocate that brings all of his intelligence and significant Court room experience to each and every matter to achieve excellent results for his clients.

    Call on 8362 6400 or email Peter.

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