iv. The second element of what a plaintiff must prove in a rectification suit is that the common intention was not given effect because of some mistake.
The evidence
35 The claim to rectification meant that it was necessary to permit into evidence a spectrum of material which otherwise would have been unlikely to have been admissible on any basis. In order to succeed on the rectification issue, the plaintiff was required to show that both parties intended, in their undertaking to the court of 8 December 2006, to commit to an arrangement whereby the third defendant would transfer to the plaintiff all the BBX dollars received in every case where the amount of BBX dollars received as part of the purchase price for the sale of the unit exceeded $100,000. For clarity, this alleged agreement will be referred to below as 'the non-elective agreement' in contrast to the agreement which the defendant alleges was made, in which they retained the power of election between the transfer of BBX dollars and putting money aside as an interim measure: 'the elective agreement'.
36 Extensive evidence was adduced by the parties both in relation to the events of 8 December 2006 and in relation to the subsequent events. The evidence included that adduced by the plaintiff from Ms Maude (group legal counsel for the plaintiff), Mr Glinatsis (a partner with the plaintiff's external solicitors - Kreisson) and Mr Simon Newport (the chief financial officer of the plaintiff). Mr Moore of counsel had not given evidence in these proceedings and was led by Mr Corsaro SC. However DOHM did not claim that any adverse inference should be drawn against Masterton by reason of the fact that, although Mr Moore had attended on 8 December 2006 and had played an important role in the drafting of the materials presented to the Court on that day, for obvious reasons he had not been in a position to give evidence whilst himself appearing in these proceedings.
37 In so far as evidence adduced from DOHM concerning the events of 8 December was concerned, DOHM adduced evidence from Mr Miles who had represented it during the negotiations in court on the day in question, Mr Miles being a partner with Donovan Oates Hannaford, the solicitors for DOHM. Additionally DOHM adduced evidence from Mr Hannaford who had given instructions by telephone to Mr Miles on the same day. He is the managing director of DOHM and is also a solicitor on the roll [although not currently practicing].
38 Additionally both parties adduced evidence of the communications which followed 8 December 2006, each seeking to obtain assistance from that material.
Assessment of witnesses
39 This is a case in which the assessment of witnesses provides limited assistance to the Court. Certainly where particular matters of reliability may be of significance, an attempt has been made in the reasons to treat with those matters.
40 It is not possible to hold that any of the four main witnesses did otherwise than attempt to give their best recollection of the relevant events. However this is not to suggest that such evidence required to be accepted.
41 Ms Maude did not appear to be an objective witness whose recollection was unaffected by her client's interest. That having been said, I accept that she did her level best to recall the events in respect of which she gave evidence.
42 Mr Glinatsis evidence was coloured by the fact that he had not only read Ms Maude's version of events before giving his own evidence, but had in fact prepared Ms Maude's affidavit. Nor was he prepared to accept what seemed to be the compelling logic of the situation, which was that a possible reason for the production of the second undertaking was the fact that his document no longer reflected the intention of the parties. That having been said, I accept that within the constraints under which his evidence came forward, he endeavoured to recall the events of the time as best he could.
43 Mr Hannaford was plainly mistaken about both DOHM's original intention to transfer $BBX to Masterton and also about the fact that DOHM had understood that such a transfer would be on a $BBX for $AUS basis. As counsel for DOHM conceded, Mr Hannaford was clearly shaken when the error of his recollection was made clear. However I accept that this fact does not alter the content of the post contractual correspondence in respect of which he was cross-examined so as to transform it into admissions from DOHM that it at all times considered itself obliged to transfer all $BBX without any option.
44 Mr Miles suffered from the difficulty that he was unable to say whether or not he had said to Ms Maude and Mr Glinatsis that Masterton could have all the BBX Dollars. He also had difficulty in providing a satisfactory explanation for having written the letter to Mr Glinatsis on 10 February 2007. Having said that, there is no doubt but that the evidence which he gave was coherent and that he presented as quietly but firmly putting forward his best recollection at the time. These matters notwithstanding, he may well, even if only subliminally, have favoured his client's interests on occasion.
Evidence of the plaintiff's intention
45 Direct evidence was adduced to indicate that Masterton, at least intended to enter into an agreement which did not permit DOHM an election, and that Masterton mistakenly believed [as of 8 December 2006] that this agreement was accurately recorded in the undertaking submitted to the court. Ms Maude and Mr Glinatsis, both of whom were representing Masterton at the December 8 negotiations, gave evidence that they understood the non-elective agreement to be the contract reached by the parties in the negotiations.