IDP 971 Richmond Pty Ltd v Xerri [2025] NSWSC 1151 | Case summary | Zoe

NSWNSWSC

IDP 971 Richmond Pty Ltd v Xerri

[2025] NSWSC 1151

Supreme Court of NSW|2025-10-02|Before: Pike J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-10-02

Before

Pike J

Catchwords

CONTRACTS – Rectification – Common intention – Proof of
common intention – where clause of option deed allowed
for a per square
meter price reduction for sale of land – alleged common mistake as to

Source

Original judgment source is linked above.

Catchwords

CONTRACTS – Rectification – Common intention – Proof ofcommon intention – where clause of option deed allowedfor a per squaremeter price reduction for sale of land – alleged common mistake as todrafting of that clause – whetherclear and convincing proof of commonintention – no question of principle

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: IDP 971 Richmond Pty Ltd v Xerri [2025] NSWSC 1151

Hearing dates: 18 September 2025

Date of orders: 2 October 2025

Decision date: 02 October 2025

Jurisdiction: Equity - Real Property List

Before: Pike J

Decision: Amended summons dismissed. Plaintiff to pay defendants’ costs of the proceedings.

Catchwords: CONTRACTS – Rectification – Common intention – Proof of common intention – where clause of option deed allowed for a per square metre price reduction for sale of land – alleged common mistake as to drafting of that clause – whether clear and convincing proof of common intention – no question of principle

Legislation Cited: Land Acquisition (Just Terms Acquisition) Act 1991 (NSW)
State Environmental Planning Policy (Precincts – Central River City) 2021
State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cl 7

Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Newey v Westpac Banking Corporation [2014] NSWCA 319 Public Trustee v Smith [2008] NSWSC 397 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 Simic v NSW Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47

The defendants are the registered proprietors of the land at X Richmond Road, Marsden Park, being Lot X in DP X (the Property).
On 30 August 2018 the plaintiff (IDP 971) entered into a Deed with the defendants whereby the defendants granted an option to IDP 971 to purchase the Property for $22 million (August Option Deed).
The Property is a green fields site that IDP 971 was purchasing with a view to subdividing it for residential use.
The August Option Deed was terminated by IDP 971 as a result of concerns about a potential railway corridor adversely affecting the use of the Property.
Negotiations took place between the solicitors for the parties, the result of which was a new option deed entered into on 10 October 2018 (October Option Deed) again for $22 million but this time with an amended clause 15.4 which provided for a reduction in purchase price in certain circumstances.
IDP 971 contends that it has now been ascertained that the railway corridor reduces the area of the Property that can be developed by 8,106.1 m2 and as such the purchase price under the October Option Deed should be reduced.
By these proceedings, IDP 971 seeks rectification of particularly clause 15.4 of the October Option Deed to give effect to the agreement that it says was reached regarding the circumstances in which the purchase price would be reduced, that agreement not being reflected in the terms of the October Option Deed.
The defendants contend that the October Option Deed should not be rectified and further contend that even if the October Option Deed is rectified in the manner contended for by IDP 971, the purchase price should not be reduced in the amount contended for by IDP 971. This is because no rail corridor or buffer area has in fact been created.
The option was exercised on 24 March 2025. The date for completion of the ensuing contract has been extended pending determination of these proceedings.
The proceedings were heard on 18 September 2025. Mr P T Lynch SC and Mr P Wiggins appeared for IDP 971 and Mr J C Kelly SC and Mr A Maroya appeared for the defendants.
The evidence was documentary. The one deponent of an affidavit – one of IDP 971’s current solicitors – was not required for cross-examination.
For the reasons set out below, IDP 971’s claims do not succeed. I am not satisfied that IDP 971 has demonstrated that the October Option Deed should be rectified.

The essence of the case advanced by IDP 971 was that as a result of the written communications between their respective solicitors at about the time the August Option Deed was terminated and before the October Option Deed was executed, a common intention was reached to the effect that “to the extent that the railway corridor adversely affected the use of the Property for residential subdivision, the price would be reduced at the rate of $773.82 psm.”
That common intention is said not to have carried through into the drafting of the October Option Deed – the drafting miscarried in that the respective solicitors thought that the adverse effect would manifest itself in an amended attachment to the Contract which was not correct. This was a case where the parties were aware of the document but misapprehended its effect: Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 341C (Carlenka).
If the October Option Deed is rectified in the manner sought, IDP 971 contends that, in the events which have happened, clause 15.4 has been satisfied and applies to the area covered by Lot 3 – the residual lot – such that the purchase price should be reduced at the rate of $773.82 m2 – this underlies order 2 of the relief sought.
The defendants joined issue with IDP 971 on both planks of IDP 971’s case – rectification of the October Option Deed and application to the facts even if rectified.
On the question of rectification, by way of general overview, the defendants contended that the effect of adding the words sought by IDP 971 would be to alter the agreement between the parties, not merely to reform the instrument in which the parties expressed their intentions. The only initiating event is said to be the defendants’ solicitor giving IDP 971’s solicitor an updated version of an attachment to the Contract. It was further contended that there is not a skerrick of evidence to support a finding that the common intention of the parties was to change that position by introducing another quite different initiating event – namely the outcome of the development application. Reliance was placed in this regard, on the absence of any evidence being led by IDP 971 of any mistake.
As to the application to the facts, the defendants contended that the development approval does not operate to “reduce or propose to reduce” the area of the Property, nor does it operate to “create a corridor or buffer area”. At present, no such corridor or buffer area has been created. There has been no reduction or proposed reduction in the area of the Property and the development approved does not operate to reduce IDP 971’s rights in any way. All of its rights are preserved, including a right to substantial compensation if and when the corridor is resumed.

(a) IDP 971 became concerned, during the 30 day due diligence period in the August Option Deed of the impact of the potential rail corridor affecting the Property and sought further detail from the defendants. The concern is understandable where IDP 971 was purchasing the Property to develop it for residential housing and the corridor may reduce the area that could be developed; (b) to the extent that it was not already aware, IDP 971 was provided with some background in relation to the corridor in the form of the two extracts provided by Mr Siderowitz on 12 September 2018. The extract of the later report – from Mr Haskew – was to the effect that in his view, both the Council and TfNSW would require the area to be free from development; (c) Ms Kallianiotis wrote to Mr Siderowitz on 21 September 2018 relevantly pointing out that in order for IDP 971 to assess the full impact of the railway corridor, it was required to submit a Development Application. Although unstated, lying behind this statement, and indeed the foreshadowed meeting with Council, was the provisions of the 2006 SEPP whereby development consent could not be granted without the concurrence of TfNSW. In other words, the determination of the development application would require TfNSW to indicate whether it opposed development of the proposed corridor; (d) significantly, to deal with the issue of the impact of the railway corridor, Ms Kallianiotis proposed amendments to clause 15.4. On 24 September 2018 she emailed handwritten amendments to the August Option Deed to the same effect as set out in her 21 September 2018 email; (e) on 26 September 2018, Mr Siderowitz emailed Ms Kallianiotis. Relevantly, he stated “Proposed amendments to cl 15 agreed”. His email response also proposed various terms regarding development approval and consent; (f) on 3 October 2018, Ms Kallianiotis emailed Mr Siderowitz stating that IDP 971 was “willing to again reiterate its offer made on 26 September 2018”. That offer was in response to the email from Mr Siderowitz to Ms Kallianiotis dated earlier in the day on 26 September 2018 which contained eight points. Ms Kallianiotis’ 26 September 2018 email did not agree to items 2, 5 and 6 which relevantly sought to reduce the option period to 36 months (item 2), vary the instalments of the option fee (item 5) and impose a three year sunset clause on development consent (item 6). Relevantly, there was no negotiation in relation to the changes proposed to clause 15.4 – Mr Siderowitz had indicated those changes were agreed; (g) at 5.04 pm, Mr Siderowitz emailed Ms Kallianiotis to the effect that he was instructed to proceed on Ms Kallianiotis’ offer – being the 26 September 2018 offer. He said he would commence drafting a fresh deed, which he did; (h) at this time, what had been agreed, relevantly, were the amendments to clause 15 proposed by Ms Kallianiotis on 21 and 24 September 2018. Mr Siderowitz did not, however, simply adopt the changes proposed by Ms Kallianiotis either in her 21 or 24 September 2018 emails. He made his own drafting changes to both clauses 15.3 and 15.4; (i) the new proposed clauses 15.3 and 15.4 were as follows (underlining showing changes from existing clauses):

The mistake in drafting was the use of an updated attachment as the initiating event in circumstances where the determination of a development application would not result in an updated attachment.
As set out above, the onus on a party seeking rectification is a heavy one – clear and convincing proof of the alleged common intention is required. Put another way, it must be demonstrated with clarity that the parties had a sufficiently precise intention.
I am not satisfied that IDP 971 has discharged that heavy onus on the evidence before me. I am not satisfied that there was a common intention as contended for by IDP 971 – namely that to the extent that the railway corridor adversely affected the use of the Property for residential subdivision, the price would be reduced at the rate of $773.82 per square metre.
It is immediately to be observed that the alleged common intention as set out immediately above is nowhere to be found in any of the communications between the parties during the relevant period. Nowhere is it said that the trigger for, and measure of, the reduction in purchase price is the “extent that the railway corridor adversely affected the use of the Property for residential subdivision”. The concept of “adverse affectation” is in any event quite imprecise and no doubt susceptible to different meanings.
Whilst it seems obvious that IDP 971 in the 21 September 2018 email from Ms Kallianiotis to Mr Siderowitz identified what may be termed a “Corridor Risk” – being the impact of the transport corridor on the development of the Property, that is only the first step, and a small step at that, along the path to rectification.
The manner in which that risk was proposed to be dealt with by IDP 971 – as reflected in the words proposed by Ms Kallianiotis – is far from clear. The proposed amendment to clause 15.4 is simply to pick up any proposal to reduce the area of the Property. It is not entirely clear how the proposed definition of “area” which includes “any corridor or buffer area that causes part of the land to be unsuitable for residential land subdivision” is intended to fit in with the substantive clauses, including the proposed to be amended clause 15.4.
Even assuming, most favourably to IDP 971 that what was intended by the proposed amendments was the creation of a corridor or buffer area that causes part of the land to be unsuitable for residential land subdivision, a number of further questions arise. Picking up on one of the matters raised during argument, what is meant by a “corridor or buffer area” – is it an area which TfNSW has determined will be used for a transport corridor, or is it simply an area in respect of which TfNSW has expressed concurrence with a development consent that does not presently permit development?
Further, what is meant by part of the land being “unsuitable” for residential land subdivision? Does it mean being unable to be built on at all or not able to be developed to the same extent as the rest of the Property?
Against the background of a development application having to be submitted which would require consultation with TfNSW, there are a number of potential outcomes of the consultation with TfNSW and, more particularly, the basis on which TfNSW may express concurrence. The options would include a formal corridor being created or TfNSW not yet determining to create a corridor but not permitting any development at the present time to enable a decision to be made at a later time as to whether to go ahead with the proposed corridor. Which of these options was intended to be picked up is far from clear.
Under the first option, development would not be possible. Under the second, it would not be possible until a decision is made as to whether to proceed with the corridor or not. If a decision is made to proceed, the land would be compulsorily acquired and compensation paid to the land owner at that point in time under the Just Terms Act (defined below).
The fact that Mr Siderowitz subsequently said he was instructed to agree to the proposed amendments to clause 15 does not advance the rectification claim too far in the absence of some clear statement as to what his clients – the defendants – understood was intended by the amendments.
There is no evidence in the present case about what either side subjectively intended.
The position does not become any clearer when regard is had to what subsequently occurred – principally the drafting efforts of Mr Siderowitz. The drafting of clauses 15.3 and 15.4 on 8 October 2018 is far from clear. There was then a telephone discussion between Ms Kallianiotis and Mr Siderowitz on the morning of 9 October 2018, resulting in the redraft sent later that day.
There was no evidence from either side as to what was discussed in this conversation – whether it was simply a confirmation of some earlier common intention or otherwise. It is for IDP 971 to prove the common intention and its continuation up to execution.
For these reasons above, the claims advanced by IDP 971 fail.
The wording proposed by IDP 971 to rectify clauses 15.3 and 15.4 of the October Option Deed also demonstrate the difficulty with IDP 971’s case. The trigger proposed to be introduced is now “the operation of the development consent” affecting the Property so as to create a corridor or buffer area. Such a trigger, in my view, is nowhere to be found in the communications of the parties from 21 September 2018 onwards. Expressed in its rectified form, the question is whether the development consent may affect the Property so as to reduce or propose to reduce its area, or create a corridor or buffer area. It was not explained how the operation of the development consent would affect the Property in either of these ways.
For completeness, I also reject the contention that any of the conduct by Mr Siderowitz in response to the updates provided by Ms Kallianiotis in relation to the development consent, amount to an admission on the part of the defendants that the October Option Deed should be rectified in the manner contended. As I understood the submission, it rested principally on the email from Ms Kallianiotis to Mr Siderowitz dated 23 August 2019 and his response dated 26 August 2019. I have set out earlier in these reasons the two emails.
Ms Kallianiotis’ email is nothing more than an update as to the progress of the application – “at this stage it appears that the transport corridor is resulting in a loss of approximately 7,760.7 sqm useable land” – and Mr Siderowitz simply noted the update. Nothing in this correspondence could constitute an admission.

In light of the conclusion I have reached above to the effect that the contract should not be rectified, it is strictly unnecessary for me to consider the question of whether the contract price should be reduced according to the rectified clause 15.4.
Against the possibility that I am wrong in relation to the rectification issue above, I turn now to consider whether, if the October Option Deed is rectified in the manner contended for by IDP 971 that, in the events which have happened, clause 15.4 has been activated in respect of the residual Lot 3, such that the price should be reduced by the claimed $6,272,662.30.
Whilst the evidence seems clear enough that TfNSW was consulted and expressed concurrence with the Proposed Plan of Subdivision which created the residual Lot 3, it is equally clear that TfNSW has not yet determined whether to proceed with the Transport Corridor and as such no corridor has yet been “created” in a legal sense. In a practical sense, no corridor or buffer area has been created either. A residential lot has been created which cannot presently be developed.
It should be kept firmly in mind however, that I am considering this second point on the basis, contrary to what I have held above, that the October Option Deed would be rectified in the manner contended for by IDP 971.
The defendants contended that I could not be satisfied that in the events which have happened, there has been the creation of a corridor or buffer area within the meaning of clause 15.4. The defendants’ primary contention was that this would only be satisfied in the strict sense of the formal creation of a Transport Corridor by TfNSW by the compulsory acquisition of the relevant part of the Property under the Land Acquisition (Just Terms Acquisition) Act 1991 (NSW) (Just Terms Act). Prior to that occurring, so the defendants’ argument ran, the position is simply that the relevant part of the Property has been designated as a residual lot. There remains the potential for its development.
If the relevant question was to be considered devoid of context, I would be inclined to accept the defendants’ contention. There is a well understood means by which, in a statutory sense, a corridor can be created.
The context here, as perhaps always, is important. I am construing the words “create a corridor or buffer area” in the context of a rectified clause 15.4. As rectified, immediately before the words “create a corridor or buffer area” are the words “so as to either reduce or propose to reduce its area or”. Senior counsel for the defendants accepted that the formal creation of a corridor under the Just Terms Act involves a compulsory acquisition of the relevant land which in turn is preceded by a proposed acquisition notice (PAN) under the Just Terms Act.
On this analysis, if “create a corridor or buffer area” was intended to refer to the formal or legal process those words would not be necessary as the formal process would satisfy the preceding words of “reduce or propose to reduce its area”.
On the hypothesis of the rectified agreement, the parties must be taken to have intended something different and lesser than the formal creation of a corridor and, relevantly, something created from the operation of the development consent. Creation of a residual lot in the area of the existing corridor which is not presently able to be developed under the terms of the development consent, likely falls within what was objectively intended on the agreement as rectified as being a corridor or, more likely, buffer area.
As such, had I reached a different view on the rectification issue, I would likely have upheld IDP 971’s position on the second issue.

IDP 971 Richmond Pty Ltd v Xerri

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

The Facts

Terms of the October Option Deed

Events after the October Option Deed

Overview of the Contentions

Relevant Principles

Determination

Was there a common intention in the terms contended for by IDP 971?

Should the contract price be reduced?

Conclusion and orders

Amendments

07 May 2026

Parties

Legislation Cited (6)

Cases Cited (4)

Cited By (1)