Key Points:
Whether you're making or defending a rectification
claim, it's important to be aware of what evidence is
admissible and what defences might apply (and how you can use them
to your advantage).
In our last article on rectification, we outlined the
requirements for rectification and gave some practical tips for
those seeking to rectify a written contract that does not reflect
what they intended.
In this follow-up article, we look at some of the key
evidentiary principles that apply in rectification cases, and
defences and discretionary factors that can defeat such a case.
Obtain evidence of the parties' subjective and objective
intention
Rectification is a discretionary remedy and will only be granted
if the Court is satisfied, by clear and convincing evidence, that
the parties held the necessary intention at the time of executing
the document (and were not then aware that the document failed to
record that intention).
