22 Mr Jarratt also gave evidence of this conversation at paragraph 10 of his affidavit sworn 24 April 2002 in these terms:
"In mid December I received a Lease from Brett Ruth which was supposed to be based on the agreement reached in our November 2 meeting. The Lease was substantially different from the previous Lease and contained a number of terms that had not previously been discussed. The wording and structure of the Lease was also completely different. On or about the 18th December I received a telephone call from Brett Ruth who said in words to the following effect, 'Have you looked at the new Lease?'
I then said in words to the following effect, 'You will have to do something about the extra clauses. Try and get them to delete the clauses relating to painting and maintenance, air conditioning and the security bond, this is going to cost you a lot of extra money.'
Mr Ruth, 'What do you make of the GST clause?'
Jarrett, 'I don't know. They may have just stuck that in to sweeten the whole deal for you. It is not unusual for this type of guy to do things like that. Cermak has been so erratic in these discussions it is hard to know what he thinks.'"
23 At 3:50pm on 21 December 2000 there was a meeting with Mr Romano at which Mr Ruth and Mr Cermak attended. The parties carefully went through the lease and argued about a number of new provisions. Ultimately, because he had no option, Mr Ruth accepted these provisions and he expressed his displeasure at the manner in which the negotiations had been conducted. There is no evidence of any discussion of the GST at the time.
24 On 22 December 2000 the plaintiffs and the defendant executed the lease, and counter parts were exchanged. Immediately thereafter there were suggestions from the first plaintiff that he might need to change some matters. Ultimately a claim was made, in early January, that the GST provision had been left out by mistake. The parties were at issue on that matter thereafter.
25 At paragraph 16 of his affidavit sworn 25 October 2001 Mr Cermak gave evidence that there was no discussion about the GST at the meeting and that he thought that the question of rent and GST had been settled in accordance with his earlier instructions. Mr Romano, the plaintiff's solicitor, also gave evidence in his affidavit sworn 26 October 2001 that there was no discussion of the rent and its expression of being inclusive of GST. It seems clear, therefore, that the plaintiff certainly signed the lease on the mistaken basis that he believed it was exclusive of GST, where as, in fact, it was inclusive of GST.
26 There is also no doubt that Mr Brett Ruth was well aware of what the lease provided, but the real question is whether he knew that it was due to a mistake on the part of Mr Cermak. The other requirements, namely, that Mr Brett Ruth did not draw the mistake to Mr Cermak's attention and that it would benefit Mr Brett Ruth clearly apply and there is no question on either matter. The question at hand however, is whether Mr Brett Ruth strongly suspected that Mr Cermak had made a mistake of a fundamental nature about the contract.
27 Both Mr Brett Ruth and Mr Jarratt were cross-examined on this matter. Mr Ruth denied that he knew that there was any error and I am prepared to accept his evidence, which he gave in a straightforward way. Given that Mr Jarratt has also given corroborative evidence, it seems to me that Mr Ruth believed that the change was deliberate and was not as a result of a mistake. On the basis that that was his belief, there was no occasion for him to raise the possibility of there being a mistake in the discussion which ensued in Mr Romano's office on 21 December 2000. Thus, given his situation, he was intent on negotiating the best of a bad deal.
28 In these circumstances it seems to me that the plaintiff is not entitled to relief by way of rectification for unilateral mistake.
29 There was a suggestion in the submissions of the plaintiff that because the parties had agreed on one aspect of their renewed lease, namely the rent and GST applicability, that they could then continue to negotiate for other terms at a later stage and in that circumstance there could be mutual or common mistake.
30 In the witness box Mr Ruth agreed, when cross-examined about his letter of 8 November 2000, that a verbal agreement had been reached between Mr Jarratt and Mr Inangeri about the property. He agreed that the letter reflected what he thought was the agreement. It is abundantly plain, however, that such agreement was predicated upon the terms of the old lease and it is quite clear that the written document, which was ultimately executed, was not predicated upon the old lease, but on a new form with additional conditions. Rent and whether or not it was inclusive of GST was a critical matter for the whole arrangement. In my view it could not be said that there was some common intention that the document signed on 21 or 22 December 2000 was to exclude GST on the rent.
31 The plaintiff's claim for misleading and deceptive conduct basically relied upon the same facts that I have dealt with above. The only matter that could be said to be misleading or deceptive would be the failure of Mr Ruth to question whether or not a mistake had been made in relation to GST. Given his knowledge and the circumstances surrounding the matter I cannot conclude that his conduct was misleading and deceptive, and accordingly, the plaintiffs are not entitled to the relief they seek on this basis.
The storage area
32 The description of the leased area in the lease was as follows:
"Part F/1 1/227538 being a two-storey rendered building fronting Nelson Street, Annandale, including three car spaces and known as 23 Nelson Street, Annandale"