In order to reach the conclusion that what was intended was the longer of a period of 21 years after the date of execution or a period of 21 years after the death of the last survivor of the descendants of the said King, I do not need to resort to extrinsic evidence of the intention of the parties at the time of entering into the trust deed. So much is manifest, I think, on the face of the deed itself, and from the ordinary purpose of including a King George VI clause in a trust deed. In those circumstances, I do not think it is necessary to resort to rectification. The result can be reached by a process of construction. In a passage which has been judicially approved (see Bowler v Hilda Pty Ltd (2001) 112 FCR 59; 183 ALR 81; [2001] FCA 342 (Drummond J)), the learned authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th ed) write (at [26-040]):
Proceedings for rectification ought not be brought if whatever mistake appearing in the written instrument is of the kind that the true meaning of the document could be ascertained as a matter of construction without recourse to extrinsic evidence. Courts both of law and of equity regularly insert, delete, alter and interpret words in such a fashion as to make the document sensible, without necessary recourse to any doctrine of rectification. Thus, in Wilson v Wilson [1854] EngR 513; (1854) 5 HLC 40 at 67; [1854] EngR 513; 10 ER 811 at 822, Lord St Leonards had no difficulty in reading "Mary" for "John" and in St Edmundsbury Board of Finance v Clark [1973] 3 All ER 902 at 915; [1973] 1 WLR 1572 at 1585, Megarry J read "coloured blue and red" instead of "coloured blue". In Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 the High Court of Australia was able to construe clause 8 of a contract for sale on a parcel of land reading:
The usual conditions of sale in use or approved of by the Real Estate Institute of New South Wales relating to sales by approved contract of land held under the Crown Lands Act shall so far as they are inconsistent herewith be deemed to be embodied herein.
So that "inconsistent" was read as meaning "consistent". As their Honours, Dixon CJ and Fullagar J said in their joint judgment (at 426-7):
There is a superficial difficulty in clause 8, because it purports to incorporate a set of conditions so far as they are inconsistent with what has been specifically agreed upon. No real difficulty, however, is created. Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency. Here it would be indeed absurd to suppose that the parties, having expressed their agreement on a number of special and essential matters, should intend to incorporate by reference terms inconsistent with what they had specially agreed upon. What they must clearly have intended is to incorporate a set of general conditions except so far as they were inconsistent with what they had specially agreed upon, and clause 8 must be read as if it is said "consistent" or "not inconsistent".
As those authors point out, the decision of the Privy Council in Watson v Phipps (1985) 63 ALR 321; 60 ALJR 1, is to similar effect; see also Ex parte Whelan [1986] 1 Qd R 500 and Rattrays Wholesale Ltd v Meredyth-Young & A'Court Ltd [1997] 2 NZLR 363. In my opinion, this case falls clearly within the territory described by Dixon CJ and Fullagar J in the passage quoted above. It would be absurd to suppose that the parties intended the Royal lives clause to operate as an actual or potential abridgement of the 21 year period otherwise fixed, as opposed to an extension of it. There would simply be no purpose in including it in that event.