"I had my own complete set of maps which included the Department of Lands maps; I had my own topographical maps; I had my own Mines and Energy mineral exploration and aeromagnetic survey maps; I had my own Conservation Commission maps, which give me soil types and vegetation types. I had literally the whole gambit of information available which I did not bring to the auction because I considered it unnecessary. I had viewed all the documents beforehand and more specifically I was interested in what the contract was about." 43. If one adds to that the fact that at the time of the auction Mr Rohde was not particularly interested in Lot "C" one can understand why he did not make further inquiries. His evidence is "I particularly did not look at the documents related to Lot C, because we had determined at that stage we weren't really interested in purchasing that particular lot". (Transcript p 199). 44. That explains also why he did not take any notice of a Department of Lands map at the auction. This is Exhibit "J". This map was displayed at the auction and it certainly differentiates Lot "C" (as amended) from the next lot (which is not designated). The next lot is clearly Lot "D" and is specially shaded (though not marked Lot "D")-obviously to show the new boundaries. 45. Also available before the auction were copies of the contracts for the sale of each lot. So far as Lot "C" is concerned the contract contained three maps, all of which showed Lot "C" or Section 9 as still containing the finger of land running along the southern boundary of Lot "D" and comprising the river frontage as part of Lot "C". In other words, the maps showed the original boundaries, not the boundaries as altered. 46. It appears that the contracts were prepared by the plaintiff's solicitors on the instructions of agents from LMPA who provided the maps. Clearly the wrong maps were provided on the day. Clearly there was some remissness in the agent's office or the solicitor's office or in both. 47. After the showing of the video the auction then proceeded. I have already commented that it is easy to be wise after the event but it does seem unfortunate that there was no mention by the auctioneer of the changed boundaries of Lots "C" and "D". 48. The change was recent. It was known that booklets had been distributed which contained original boundaries of these lots. It should have been realised that prospective purchasers may well have seen the earlier maps before the amendments; such as could be seen in the office of Colliers or the Lands Department. Although, in the view which I take, the failure of the auctioneer to make a speci fic reference to the changed boundaries of "C" and "D" does not conclude the matter, it may very well have saved all the trouble the reafter. No doubt the auctioneer believed that the contracts made that clear. But they did not. 49. The counterclaim of the defendant is framed neither in negligence nor in misrepresentation and I am not for a moment suggesting that such causes of action were appropriate or would have succeeded. I merely remind myself that these are not the specific causes relied on by the defendant. The Purchase of Lot "C" 50. The auction proceeded. Various lots were purchased. The defendant company purchased Lot "G". Lots "C" and "D" wer e passed in. Subsequently Mr Rohde says he was approached by Mr Buckley and then had a discussion with Mr Buckley and Mr Loveridge (of LMPA) about purchasing Lot "C". Ultimately he agreed to do so on behalf of the defendant, subject to a "cooling off" clause being included in the contract. This clause entitled the purchaser to rescind by 9am on 5 September 1986. The clause was agreed to by the vendors whose solicitor inserted it as a special condition. The clause reads: Special Condition Cooling Off Period 51. The parties hereto agree that the purchaser shall be entitled to rescind this agreement by notice in writing to the vendor's agent by 9am on the 5th of September 1986. If no such notice is received this contract shall be unconditional from that date. 52. The reason why Mr Rohde requested the cooling off period was because one of his co-directors had not seen the land and he wanted him to inspect it. The agreement with that special condition was then signed by Mr Southwell for the plaintiff and by Mr Rohde and Mr Caratti as directors of the defendant. 53. No-one noticed the discrepancy in the plans. Mr Rohde says he read the contract very quickly checking the terms of the lease, the terms of payment and the plans. So far as he was concerned, of course, the plans tallied with the original information he had. He says that one of the vendor's solicitors asked him if he understood the contract including the boundaries and he said he did. 54. Mr Southwell does not seem to have checked the plans on that occasion. 55. He believed that the amended plan had been included in the contract. His evidence was that he intended on behalf of the plaintiff to sell Lot "C" as amended and he says that the plan which he later ascertained was included in the contract document did not correctly reflect his intention as to the land to be sold. 56. The agreed purchase price for the land was $125,000-00 and the defendant paid the deposit of $12,500-00. The contract was not rescinded by 5 September 1986. Mr Rohde's co-director inspected the land on 4 September and gave his assent to the purchase. 57. The defendant's solicitor, Mr Latimer, was present before and during the auction. He says he was asked about a week before the auction to look at some draft titles and to attend the auction and to advise generally on the documents. One of the documents he was given was the booklet (Ex. 4) which Mr Rohde had obtained previously. He was asked whether he had taken any notice of the areas comprised in each lease. His answer was: "No, I didn't. Mr Rohde had been going down to the Finnis River Station. He knew the layout of the countryside and he knew what the m aps referred to. It wasn't of any great consequence to me". (Transcript p 76). 58. He says he saw the video but didn't take much notice of it. He asked some questions at the auction about the issue of titles. He saw a map on the wall (which I am satisfied was Exhibit "J" and which contained the altered boundaries) but he could not recollect the precise boundaries. He says he also saw the newspaper advertisement. 59. He was present at the subsequent discussions relating to the purchase of Lot "C". He continued to act for the defendant after the sale. The Events after the signing of the Contract 60. Mr Latimer was aware that the contract was subject to two conditions precedent, namely that the Crown lease in respect of the land issue, and that the Minister consented to the transfer. (Clause 8.1 of the contract). It is significant (and I will deal with this later) that the contract refers to "Crown Lease Term No. 575". He set about obtaining the lease and the consent. In this he was assisted by a Miss Hooper who was an employee of his firm. 61. He says that they did not carry out searches previously because he knew that there were no titles in the Land Titles Office at the time "and I had looked at the document a week or two before the auction which had been issued by the vendors and so I relied upon that at that stage" (p 79). 62. According to Mr Wheaton the map with the altered boundaries would have been on display to the public from about 13 August. Crown Lease Term No. 575 was signed by the Minister's Delegate on 1 September 1986. The draft leases would have been available "pretty quickly after the 13th". 63. On 9 September, the plaintiff's solicitor wrote to Mr Latimer's firm pointing out that the "cooling off" period had expired, the contract had not been rescinded and the vendors would be pressing ahead for the issue of titles (i.e. the leases). The letter contained a reminder that the purchaser was responsible to make application to the Minister for the transfer of the properties. 64. On 7 October 1986, the defendant's solicitors wrote to the Minister seeking consent to the transfer of the two lease s which the defendant had purchased. 65. The Minister's Delegate, by letter of 8 October 1986, replied that he was prepared to grant consent on the signing by the defendant of certain undertakings. These included the following: "We fully understand the terms and conditions of the lease." We are aware of and accept the present situation regarding the legal and physical access." 66. Those undertakings were signed by the defendant on the same day. The consent of the Minister's Delegate was then given on 10 October 1986. 67. By letter of 29 September 1986 the plaintiff's solicitors confirmed that "Titles" (i.e. Crown leases) had now been issued and enclosed a copy of Crown Lease No. 575. That copy was fully executed by the plaintiff and the Minister's Delegate, and described the land, inter alia, by reference to a plan which is included and clearly sets out Section 9 as amended. The finger of land extruding into the south boundary of Section 5 does not appear. It was after receiving this copy lease that the defendant's sol icitors sought the Minister's approval for the transfer of the lease to the defendant. 68. Some time on 1 October or 2 October (the evidence is not clear) the discrepancy between the plan in the contract and the plan in Crown Lease 575 was noted. Miss Fong Lim, a member of the firm of solicitors acting for the plaintiff, says she discovered the discrepancy when she received the Crown lease. Presumably Miss Hooper also discovered this on receipt of the lease. In any event there was some conversation between Miss Hooper and Miss Fong Lim, and the plaintiff's solicitors sent a letter to the defendant's solicitors dated 2 October 1986 in which the plaintiff offered to rescind the contract and return the deposit if the defen dant confirmed this by 5 pm on 3 October 1986. Otherwise the plaintiff would assume that the contract would continue. The defendant was advised that if the contract was terminated the property would be put up for sale on 8 October. 69. This letter also contains an allegation that Mr Loveridge had advised Mr Rohde that "the mango block (i.e. Lot "D") was to be given access to the river and accordingly Section 9 was correspondingly reduced". Since Mr Loveridge did not give evidence I disregard that allegation. It may be a mistaken reference to the conversation between Mr Buckly and Mr Rohde. (See Ex.5). 70. The defendant's solicitors replied to this letter by letter of 8 October (Ex. 5) claiming that the enlarged boundaries of Crown Lease 575 had been widely advertised and contained in the contracts displayed on the day of the auction and their client was entitled to rely on the contract. They sought either specific performance of the contract or compensation in the sum of $40,000 for the land sought to be excised. This letter of the defendant's solicitors was marked "without prejudice" but that privilege was waived by counsel for the defendant at the trial. 71. Curiously, however, on the same date, i.e. 8 October 1986, the defendant executed, as purchaser, a Memorandum of Transfer of the property which was then clearly and unambiguously described as "All that land being Section 9 Hundred of Milne and comp rised in Crown Lease Term No. 575 entered in the Crown Lease Register Book Volume 199 Folio 22" for the sum of $125,000 (Ex. "R"). By that time there was no doubt to what land that description applied and I find it strange that such a document would be executed at that stage in view of the dispute between the parties. Mr Coulehan submits that if the defendant had not done that it would have been in breach of contract because of their duty to prepare a transfer within 14 days. (See Clause 6 of the contract.) That may be so but one would have thought that care would have been taken to describe the land as the defendant alleged it was, at least by so me reference to the plan in the contract. Mr Coulehan, however, draws attention to the fact that neither waiver nor estoppel has been pleaded or relied on by the plaintiff, and it may be that the preparation of the transfer should be looked at in the light of other negotiations then on foot between the parties. 72. Whatever the negotiations between the parties may have been they came to naught and the battle lines were drawn. The plaintiff alleges it remains ready, willing and able to complete the contract as it alleges it to be. The defendant says the same for the contract as it alleges it to be and seeks damages for such of the contract as cannot now be specifically performed. 73. The plaintiff has sold Lot "D" with the river frontage to a third party. That sale took place on 8 October 1986 (E x. "Z"). In view of the dispute between the parties, the plaintiff may have been somewhat precipitant in this sale. The defendant has placed caveats on Crown Lease 575 and on so much of Crown Lease 573 (the mango block) as relates to the river frontage. 74. The position is therefore an unfortunate one of lack of care on both sides. The plaintiff's agents should have tak en greater care with the alterations in the booklets and maps and with the preparation and wording of the contracts and should have been more specific at the auction. The defendant's agents had the opportunity to inspect maps and draft leases before the auction and did not do so, relying on earlier inquiries. In particular they did not inspect Crown Lease Term 575 which had been properly executed and was available for inspection from 1 September onwards. The Construction of the Contract 75. I have taken some time to set out the background, but much of that relates to extrinsic evidence which would not normally govern the construction of a written agreement. I turn therefore to the question of construction. 76. The contract is dated 3rd September 1986 and recites an agreement between the plaintiff and the defendant. Then follow the passages over which most of the conflict has raged. I set these passages out precisely as they appear on the contract as executed by the parties on 3 September shortly after the completion of the auction. WHEREAS A. The vendor is the registered proprietor of a leasehold estate from the Crown granted in respect of all that piece and parcel of land being Crown Lease Term No. 575 entered in the Register Book of Crown Leases Volume Folio. A copy of the title deed is annexed hereto and marked with the letter "A". NOW IT IS HEREBY AGREED AND DECLARED by and between the parties as follows:

1. AGREEMENT TO SELL 1.1 The vendor hereby agrees to sell to the purchaser and

the purchaser hereby agrees to purchase from the vendor the property. 1.2 In this agreement the expression "the property" means all, and where the context permits, includes any of the following:- 1.2.1 All that piece and parcel of land being hereinbefore described in Recital "A" (hereinafter called "the land" ). 77. Crown Lease Term. No. 575 was signed by Mr Fowlestone, the delegate of the Minister, on 1 September 1986. It would seem that the title particulars were not then on the lease and those would have been lodged with the Registrar-General on 23 September 1986. See the evidence of Mr Fowlestone p 145. Some time after that the Volume and Folio numbers were inserted on the lease and they appear on Ex. "B". They were available when the conveyance was prepared which would have been shortly before its date of 8 October 1986. That is the explanation as to why the Volume and Folio numbers are left blank in the contract. 78. The real question is a very narrow one. Bearing in mind that Crown Lease Term 575 was in existence from 1 September 1986 and that lease contained the altered plan of Lot "C" or Section 9, do the terms of the contract indicate that was the land be ing sold; or does the reference to a copy of the title deed being annexed to the contract and that copy containing a plan of Section 9 as originally subdivided mean that what was being sold was the original Section 9? 79. In answering that question the primary exercise is to look at the terms of the contract itself irrespective of evidence as to the intention of the parties. 80. Confusing though the addition of the plans and maps may be, there seems to me no ambiguity of what is here bought and sold and that is Crown Lease Term No. 575. That is a specific description of a specific interest in property which was in existence at the time of the execution of the contract and there was then no other interest in property to which the description applied. Whatever may have been the position earlier, on 3 September 1986 the plaintiff was the registered proprietor of that interest, and no other interest which could be described as Crown Lease Term No. 575. 81. Any reference to that lease will show that the property is there described as "ALL THAT land being Section 9 Hundred of Milne ('the leased land') containing an area of one thousand five hundred and ninety hectares or there abouts as delineated on the plan hereon and tinted pink". That plan shows Section 9 as amended. That in my view is what the contract can only refer to. 82. The contract is not happily worded and Mr Hiley for the plaintiff has freely conceded as much. For instance what is described as a "Title Deed" in Recital "A" is more correctly a "Crown Lease Term". The reference to the copy of the title deed b eing annexed and marked with the letter "A" is incorrect insofar as the document annexed is not marked with the letter "A". These are not in themselves heinous errors since the document described can be readily identified and such errors would not vitiate the reference. But they are indicative of a somewhat careless preparation which has been one of the causes of the problems of this case. 83. The real difficulty, of course, has been caused by the insertion in the contract of an earlier unexecuted lease show ing the original boundaries of Section 9. In addition, two other maps are inserted both of which show the original boundaries of Section 9, although, to make confusion more confounded, those maps have that Section marked as Lot 5, in one, and with the figure 5 in the other. Neither of those maps are referred to in any way in the written terms of the contract. All this must give way to the specified description in Recital "A" of "Crown Lease Term No. 575". Mr Coulehan for the defendant submits that "the property" is defined in clause 1.2.1 of the contract to mean 'All that piece and parcel of land bein g hereinbefore described in Recital "A"'; and since Recital "A" includes a reference to "a copy of the title deed", that is part of what is "described" in Recital "A". Although there is undoubtedly force in this I cannot accept the argument. Recital "A" says that the vendor is the registered proprietor of Crown Lease Term No. 575. That is the specific description. The next sentence read s: "A copy of the title deed is annexed hereto and marked with the letter 'A'". Although it is admittedly a fine line I consider that that sentence is referential rather than descriptive. The fact that a wrong document has been attached does not destroy the force of the specific description of the property. 84. It may well have been different if Recital "A" had used the words which are used in the Crown Lease where the land is specifically described as being that delineated on the plan. But the words of Recital "A" merely indicate that a copy of the title deed is annexed. They do not take away from the identifiable and unambiguous description already given. 85. Mr Hiley also draws attention to the fact that what is annexed is an unexecuted lease; and certainly a perusal of the document shows that it has not been signed by the Minister or his delegate. So it cannot really be said, and it is not accurate to say, that there was a copy of the "title deed" annexed. Although that error was made by the plaintiff it is, says Mr Hiley, a further indication that one can only properly rely on the earlier and unambiguous description. I think there is force in that argument. 86. In my view the case therefore rests on the principle, "Falsa demonstratio non nocet". Romer J. in Cowen v Truefitt Limited (1898) 2 Ch 551 at 554 construed that maxim in this way: "In construing a deed purporting to assure a property, if there be a description of the property sufficient to render certain what is intended, the addition of a wrong name or of an erroneous statement as to the quantity, occupancy, locality or an erroneous enumeration of particulars will have no effect." 87. In Llewellyn v Earl of Jersey [1843] EngR 326; (1843) 11 M and W 183 at 189 Parke B. stated it thus: "As soon as there is an adequate and sufficient definition, with convenient certainty, of what is in tended to pass by a deed, any subsequent erroneous addition will not vitiate it; according to the maxim falsa demonstratio non nocet." 88. Lord Sumner in Eastwood v Ashton (1915) AC 900 at 914 referred to the above quoted remarks of Romer J. and Parke B. and added that to do the maxim full justice the words "cum de corpore constat" should be added. The full maxim then translates according to Broom's Legal Maxims as, "Mere false description does not vitiate if there be sufficient certainty as to the object." 89. Lord Sumner in Eastwood v Ashton (supra) commented that "The rule is undoubtedly ancient". Brooms Legal Maxims traces it back to Roman law. Many early examples can be found in the cases collected in Norton on Deeds, 2nd Edition (1981) pp 233-246. It would be tedious to refer to all the cases, for the rule is plain enough. Norton sums it up at p 233: "Where the parcels are described by both a general or collective and a special description, or diverse special descriptions, but something exists which satisfies some or one of them, and is described with sufficient certainty, the other or others may be disregarded." 90. One case, however, is closely illustrative of the present case and I cite particularly because of the principal judgment which sets out much of the learning on the subject. The case is Roe v Lidwell (1860) 11 Ir CL Rep 320. There the convey ance was for "the town and lands of Dromardmore in the barony of Ikerrin and county of Tipperary containing 1086a. Or. 23p , statute measure or thereabouts and described in the annexed map". It was contended that 45 acres were part of the lands of Dromardbeg and not of Dromardmore. The judge at the trial told the jury that whether the lands in question were Dromardbeg or Dromardmore was immaterial provided that they were included in the map. The jury found for the plaintiff who was maintaining that what passed was what was in the map. The Court of Common Pleas ordered a venire de novo and that judgme nt was affirmed by the Court of Exchequer Chamber. That court consisted of seven judges who were unanimous in upholding the decision of the Court of Common Pleas although one judge (Fitzgerald, B.) seemed doubtful and agreed only on the basis of previous authority. The principal judgment was given by Lefroy C.J. He said at pp.326-327: "In this case the plaintiff claims, by his summons and plaint, forty-five acres of the lands of Dromard, otherwise Dromardmore, which he further identifies as then or lately in the possession of certain persons named therein; and to sustain that claim he gives in evidence a conveyance from the Commissioners of the Incumbered Estates Court, with a map annexed. By that deed the commissioners grant 'the town and lands of Dromardmore, in the barony of Ikerrin, and county of Tipperary, contain ing 1086a. Or. 23p. statute measure, or thereabouts, and described in the annexed map, with the appurtenances'. But the annexed map, according to the evidence, contains not the lands of Dromardmore, but the lands of Dromardbeg, a distinct denomination and parcel of land, in the occupation of the persons alleged to have held the lands of Dromardmore, claimed by the plaintiff, but who, according to the evidence, do not hold them, but hold the lands of Dromardbeg, belonging to the defendant. Now, supposing that to be so, what is the rule of construction in such a case, looking to the deed, the map and the evidence? I take the rule to be this, as laid down in Shep Touch, pp 99, 246, 247:- 'Whenever there is, in the first place, a sufficient certainty and demonstration, and afterwards an accumulative description, and it

fails in point of accuracy, it will be rejected. Falso demonstratio non nocet.' This rule is stated an exemplified in a variety of cases, collected from Brooke, Plowden, Dyer and other ancient authorities; from which it als o appears that the grant of land, by its name, constitutes prima facie that 'sufficient certainty and demonstration' which will satisfy the rule. Thus, it is said, "If one grant all his lands in Dale, (which he had of the gift, of J.S., by this grant (thus restricted) nothing will pass but that which he had the gift of J.S. But if one grant all his lands in Dale, called Hodges (being a full description and certainty in itself), which he had of the gift of J.S., by this grant all that which is called Hodges shall pass, al beit the grantor had it not of the gift of J.S. (for falsa demonstrationon nocet.)" So again, in another case it is said, "If a par ish lie in two counties, viz., Berks and Wilts, and one grant in this manner, 'all his close called Callis, in the parish of Hurst, in the county of Berks,' and in truth the close doth lie in the county of Wilts, this is a good grant to pass the close (because the close passes by the name as a full and certain description)." In the present case, we have the certainty of the name of the close intended to be passed, and, in addition to the principle of law, there is evidence which abundantly negatives its being the close de lineated on the map, which must, therefore, be rejected as a falsa demonstratio. So again it is said in another case, "If one grant in this manner, 'my manor of Dale, which appeareth by office found to be of the value of 10 per annum,' and in truth in the office it is found at 20 per annum, this grant is good, notwithstanding this misprision (because there is a certainty, with a false demonstration)." But it has been argued that, as the map was held to be the guide in the case of Errington v Rorke, so it should be in the present case; but in that case the deed made the map the guide. The grant was "part of the Bog of Allan and Clunagh;" but what part was not further specified than by reference toto the annexed map, which alone afforded any certainty or ascertainment as to what part was intended to pass. It was not a grant of "the Bog of

Allan and Clunagh," but only a part, and what part was only ascertained or ascertainable by reference to the map. The map was, therefore, the only means of certainty as to what was intended to pass. In the present case, by the grant of Dromardmore, by its name, constat de corpore. There is also the positive evidence to show that the map is "falsa demontratio," as to the description by occupation in the summons and plaint, of the land claimed by the plaintiff. We have also the authority of this Court in the case of The Dublin and Kingstown Railway Company v Bradford, which appears to be quite decisive, to show that where the map conflicts with the grant, which contains a certainty beyond doubt, the map may be rejected as falsa demonstratio. 91. See also Maxted v Plymouth Corporation (1957) CLY 243: Horne v Struben (1902) AC 454: Rexhill Holdings Ltd v Maybird Investments Ltd (1972) 31 DLR (3d) 12. It cannot in my view be suggested that something called Crown Lease Term 575 must necessarily be defined by reference to the map annexed to an unexecuted document even if described as Crown Lease Term 575, which it clearly is not. The fact that a lease

• or rather an unexecuted lease - purporting to be Crown Lease Term 575 is annexed to the contract and which is not in any event the true Crown Lease Term 575 does not alter the identity of what is otherwise certain and identifiable and in existence. On the authorities this is a case of falsa demonstratio.

92. I think the understandable confusion lies in the fact that the document attached has so many similarities to the real Crown Lease Term 575. It has the same number, the same covenants and comprises as part of the land described the whole of the land in Crown Lease 575. But this does not make it Crown Lease 575. Obviously the situation would be much simpler if the document attached was Crown Lease 574, or contained a plan of a totally different block of land, or was not a Crown Lease at all. That would be a much plainer case of fal sa demonstratio. But the principal remains the same that if a wrong document is attached it remains a wrong document however much it may resemble the true; provided that a certain and unambiguous description can be found in the contract.
93. Mr Coulehan refers to the case of Eastwood v Ashton(supra); but I do not consider that case assists him. Mr Couleh an particularly refers to the remarks of Lord Parker of Waddington at p 912 to the effect that the maxim falsa demonstratio "is useless unless and until the Court has made up its mind as to which of two or more conflicting descriptions ought under the circumstances to be considered the best description". This is correct of course; but His Lordship is merely emphasising that the Court does not choose blindly from various and possibly conflicting alternatives. There must be a rationale. For instance in that case Lord Parker had no hesitation in adopting one of four different descriptions of the property because of its conclusive nature. The description he adopted involved a reference to a map and in the circumstances of that case the map was conclusive, particularly because as His Lordship observes that map was introduced by a recital specifically incorporating the map as a description of the land conveyed. The case therefore rather supports the argument of the plaintiff on the basis that if a certain and unambiguous description can be found then other descriptions less certain yield to it. In the case of Eastwood v Ashton the beacon shining in the darkness was the plan. In the present case it is the expression "Crown Lease Term No. 575".
94. In Eastwood v Ashton what was conveyed was "All that farm ... called Bank Hey Farm ... containing 84 acres 3 roods a nd 4 perches or thereabouts and in the occupation as to the part thereof of J.H. as yearly tenant thereof and as to the remainder thereof of C.W.C. as half-yearly tenant thereof, all of which premises are more particularly described in the plan endorsed on these p resents and are delineated and coloured red in the said plan." (Emphasis added.) (I take the description from Earl Loreburn's judgment at p 906.)
95. The plan included a strip of land which was not in the vendor's ownership because another had acquired the title by adverse possession.
96. It was held that the description by reference to the plan must prevail. But the whole basis of that case was that the plan rendered certain what was otherwise uncertain, i.e. there was no other guide to an exact description although the other matters taken with the plan assisted in arriving at that exact description. What Lord Loreburn says is this (at p 906-7):- "Here are four guides towards identification of the land conveyed. The first is of no assistance be cause there is no farm which is now known as Bank Hey Farm and can be made to fit this sale, though there used to be a farm of that name, now cut up into different parts. The second guide, namely the acreage of 84 acres odd roods and perches, is of no value for o ur purpose because it is, by the contention of both sides, not an absolutely precise measurement, and it therefore cannot help us to a strip of land about one twelfth of an acre in area. The third guide is very defective because it is common ground that part of the land included in this sale was not in the occupation of either Haydock or Cartman, though all of it was tenanted by one or the other. A part of it was tenanted by Cartman but occupied by his sub-tenants. It is however the fact that the strip in question here was neither occupied nor tenanted by either of those gentlemen".
97. His Lordship therefore turned to the fourth guide, namely the plan, and concluded (at p 908):- "The description of the land as Bank Hey Farm does not help. The acreage is admittedly not precise and does not help. The description of the land as being in the occupation does not help. I think that the one accurate guide is th is indorsed plan".
98. See also Lord Parker of Waddington at p 912 "The only certain and unambiguous description is that by reference to the map". See also Lord Sumner at p 917: Lord Wrenbury at p 920.
99. Now it may be argued that their Lordships were not specifically applying the falsa demonstratio rule because some of them considered that the other descriptions could be shown, in the context and in the light of the recital and the map, to fit in with the presumed intent of the parties. Hence, not falsa demonstratio. For instance, Earl Loreburn said at p 907 that all four identifications "may have to be considered together, for each one may help us in understanding the others". Lord Sumner said at p 917: "Neither is it a case where the false description applies to no subject and the true description to one only. The falseness, or rather vagueness, of the first part, when supplemented by the last, is corrected and becomes a whole, which refers with adequate certainty to one subject and defines it fully".
100. However, that seems to me a distinction without a difference, relying merely on a strict definition of "falsa". For it seems to me that the expression covers inaccuracy or uncertainty as well as falsity. See Preston in Shep. Touchstone (quoted in Norton on Deeds, p 233):- "Whenever there is in the first place a sufficient certainty and demonstration, and afterwards an accumulative description, and it fails in point of accuracy it will be rejected".
101. (In fact, as Norton points out, in relation to the words "the first place" the position is immaterial. See Lord Parker of Waddington in Eastwood v Ashton (supra) at pp 912-3).
102. However that may be, it seems to me that Eastwoodv Ashton, in its reliance on that which can be found as certain in a group of otherwise uncertain or false or inaccurate indications, is authority in favour of the plaintiff in this case rather than for the defendant. Note also the comment of Lord Parker of Waddington at p 916, "If the whole of the land intended to be conveyed and no other premises had borne the name of Bank Hey Farm, the description would have sufficed". That seems to me very close in principle to the situation in the present case where the whole of the land intended to be conveyed is described as Crown Lease Term No. 575 and no other premises could, at the date of the contract, have fitted that description than what is in fact comprised in Crown Lease Term No. 575.
103. It follows from what I have said that the defendant can get no assistance from a case such as Wigginton and Milner Ltd v Winster Engineering Ltd (1978) 3 All ER 436. That was a case where recourse was had to a plan annexed to a conveyance although described as "for the purpose of identification only". But the reason for that was that the true identity of the land intended to be conveyed was not made explicit in the description of the land by parcels. Such a situation only arises if there is otherwise noth ing certain in the conveyance which can be relied on. See Buckley L.J. at pp 445-6, "In the present case the plan on the conveyance does help in that respect to solve an aspect of the problem of identifying the property conveyed which is not solved in any way by the very brief description of the parcels contained in the schedule". (Emphasis added.)
104. The contra proferentum rule was relied on by the defendant but in my view does not assist. It is only applied in cases of ambiguity. Chitty on Contracts (1983) 25th Edition at paragraph 793 and the cases there cited. Properly construed there is no ambiguity in the contract.
105. There are certain other matters relied on by Mr Hiley which are strictly unnecessary to consider once it is decided that the contract passed an identifiable estate. But they strengthen the view that a careful reading of the contract should have put the defendant to investigation, which investigation would have established that what passed was the interest described as Crown Lease Term No. 575 and that term existed and was identifiable.
106. Clause 8.1 provides that it shall be a condition precedent to settlement that:- 8.1.1 The Crown Lease in respect of the land is issued. 8.1.2 The Minister for Lands consents to the land being transferred to the purchaser.
107. The document annexed to the contract was clearly incomplete. It did not bear the signature of the Minister or his Delegate and it did not give the date of commencement of the lease. Yet the true lease existed and was available for inspection in the Lands Department and at the auction. It was not sufficient to rely upon some earlier unexecuted document if the true document was available, and any inspection of the true document would have revealed the exact nature of the land to be transferred. Indeed the defendant seems to have accepted this position by the execution of the transfer (Ex. "R") which seems to have no arguable ambiguity.
108. Clause 11.1 includes the following:- "... and the purchaser acknowledges it purchases the property relying on its own inspection knowledge and enquiries regarding the said property and has relied on its own skill and judgment in all respects and not any brochures or advertisements issued or published in

respect of this sale or any representations or statements made by or on behalf of the vendor or its agents". 109. Clause 14 says further that "the vendor does not guarantee the correctness of the boundaries or areas of land described in the lease to the said land ...". 110. Those clauses seem clearly to direct the purchaser to make enquiries outside anything it has received by way of brochures or maps. I appreciate that the force of the clause may be somewhat lessened by the wrong map annexed to the contract itself but it still directs the defendant's attention to the necessity for careful inquiry. In Pakallusv Cameron [1982] HCA 63; (1982) 43 ALR 243 at 244, Gibbs C.J. referred to a clause in a contract that it was the responsibility of the purchaser to satisfy himself as to the boundaries of the land and the location of improvements, and commented that "The failure of the appellants (purchasers) to ensure that someone conducted a survey before completion was nevertheless an omission to take a precaution that was obviously necessary". 111. It was not necessary in this case for the defendants to conduct a survey. All that was needed was to check the executed Crown Lease which was available. 112. Finally, Clause 17 reads: "No error or misdescription of the property or any part thereof shall annul this agreement". Although that might sometimes rebound against the plaintiff it does not do so here when the property can be properly defined and, again, it puts the defendant on notice to make enquiries if it wishes to be sure of the facts. 113. In the view I have taken therefore it does not become necessary to deal with the plaintiff's claim for rectification since rectification is not necessary. 114. In any event, on the facts as I have found them, and if it had been appropriate to look at extrinsic evidence on the question of rectification, that evidence does not establish a common mistake or a "common continuing intention" (see Crane v Hegeman-Harris Co. Inc. (1939) 1 All ER 662 per Simonds J. at 664). It establishes that Mr Rohde believed he was purchasing the land marked Section 9 on the original subdivision and Mr Southwell and those acting for the plaintiff believed that what was being sold was section 9 as in the amended subdivision. 115. The basis of rectification is common mistake (see Voumard - Sale of Land

• 4th Edition - pp 32-33). This is not acase of common mistake.

116. It is true that Mr Hiley submitted that Mr Rohde should have known and indeed did know that a mistake had been made in the contract documents and was endeavouring to exploit that to his own advantage. I do not accept that. If Mr Rohde had been as devious as is suggested and had noticed the mistake in the contract document one would have thought that he would have made more than a perfunctory bid for Lot "C" when it came to be auctioned. But I am satisfied from my observation of him that he did not know of any mistake in the contract at the time he signed it.
117. On the other hand, I am not persuaded by Mr Coulehan's submission that Mr Southwell's evidence indicates that it was his intention that the plan attached to the contract should identify the land being sold on his behalf. That is a little bit more generalised than the evidence actually indicates. Mr Southwell's evidence on this aspect appears at p 171 "At the time when you executed the contract, was it your intention well, was it your intention that there would be annexed to the contract the plan that actually was annexed to the contract; or that some other plan be annexed?--- When I signed the contract, this being item C - - - Exhibit 1, yes?---It was my intention that the plan attached to that contract should be the land which my agent had identified was a vailable for sale, and which had been included in the publication well, the major one I can think of was perhaps the NT News publication, which is a broad sheet. This identified parcels of blocks of land, and that identified to intended purchasers what they might be looking to buy. Can I just take you back? Was it your intention that the plan actually annexed to the contract be the plan to be annexed?---It was my intention that the plan attached to that should identify the block of land which David Loveridge at his auction had identified as the block of land that was being sold on my behalf. Thank you. Does that plan correctly reflect your intention?---Well, I don't know that it doesn't."
118. The result of this seems to be that Mr Southwell is saying he intended that the second plan be attached to the contract not the one that was. Mr Coulehan may be right in interpreting that as meaning that Mr Southwell wished the plan to identify the land sold, but if one is to have regard to extrinsic evidence one must look to what was actually intended, which was, not that a plan be annexed to identify the land sold, but that the correct plan be annexed to identify the land sold. Again, I do not think tha t Mr Coulehan brings this evidence within the contra proferentum rule which may be applied only where other rules of construction fail. See Gindus v Melrose (1858) 3 H and N 178 at 182.
119. As to the counterclaim, and again on the view that I have taken, the defendant does not make out a case for specific performance of the contract as it claims it to be or for specific performance of the contract as the plaintiff claims it to be together with abatement or damages. The case is resolved by the declaration sought by the plaintiff in paragraph 10 (aa) of the Statement of Claim, and to which I consider it is entitled. The Caveats

The plaintiff seeks removal of the caveats of both Crown Lease Terms 573 and 575. There is no evidence that the plaintiff has taken proceedings under s.191 of the Real Property Act for the removal of these caveats. I am in some doubt as to whethe r the Court has the power, or should peremptorily order, the removal of caveats when a procedure is laid down by s.191 IV-VII for removal. It may be that in an appropriate case a Court could order removal of caveats without waiting for that procedure to be followed; but the ordinary and ordained procedure is a useful one giving both caveator and caveatee the right to put their case to the court; and inevitably leads to the removal of the caveat if the caveator cannot justify his actions. It is not necessary in my view to make a specific order here because the result of the declaration must be that the defendant has no caveatable interest in the leases mentioned, at least in relation to the issues traversed here. I would expect therefore that the defendant would remove the caveats pursuant to s.191 VIII or that the plaintiff would have the right to seek their removal by the procedures set out. In Wharawhara Haimona v Casey (1921) NZLR 455 at 4 65 Sims A.C.J. speaking for the Full Court, said, "The respondent, we presume, will withdraw the caveat without waiting for any order on the subject. But if an order is necessary the proper method of obtaining such order is by an application by the registered proprietor under s.152 of the Land Transfer Act 1915". 121. The plaintiff has, however, claimed damages or compensation pursuant to s.191 X of the Act. The plaintiff also claimed damages in the event of the contract being rescinded but that has not occurred and I deal with that no further. The defendant's claim for damages for breach of contract necessarily fails on the finding that there has been no breach of contract. 122. The plaintiff's claim for compensation or damages pursuant to s.191 X is based on the submission that the defendant lodged the caveats "wrongfully and without reasonable cause", to use the terms of the subsection. The plaintiff particularly refers to the caveat in relation to Crown Lease Term 573 on the basis that, whatever may have been the claims in relation to Crown Lease Term 575, the defendant had no claim to a caveatable interest in 573. I would disagree with that. If the defendant's contention had been correct, then it was pur chasing part of 573 and had an interest in that part, and the caveat (Ex. "C") makes that clear by delineating that part of the land in which it claims an interest. Section 191 allows "any person claiming to be interested at law or in equity whether under an agreement, or under an unregistered instrument or otherwisehowsoever in any land" to lodge a caveat. In my view the terms of the section are wide enough to include the sort of interest the defendant claimed. 123. On the question of compensation or damages there is some force in Mr Coulehan's submission that the plaintiff acted precipitantly in selling Crown Least Term 573 to a third person knowing that there was a dispute as to part of that land, and thereby becoming the author of its own misfortune if settlement could not be effected because of the the defendant's caveat. Mr Coulehan also complains that it was open to the plaintiff, if it wished to claim damages, to take the normal procedures for the removal of th e caveat under s.191 and thereby place on the defendant the onus of justifying the caveat and forcing the issue as to compensation or damages, - which steps it did not take but rather sought these damages by a late amendment to its Statement of Claim. Again I think there is force in that argument, but the situation seems to me to be covered by a line of cases r elied on by Mr Coulehan to the effect that to succeed in obtaining damages the plaintiff must show a lack of reasonable cause in the defendant in lodging the caveats. The terms of s.191 X state that "any caveator ... who shall have lodged or refused or neglected t o withdraw any caveat wrongfully and without reasonable cause shall be liable to make compensation to any person who may have sustained damage thereby". 124. In Young v Rydalmere Credits Pty Ltd McFarlan J. considered the phrase "without reasona ble cause" in s.98 of the NSW . That section is in similar terms to the Northern Territory Act save that it does not include the word "wrongfully". Its terms are these: Any person lodging any caveat with the Registrar-General without reasonable cause shall be liable to make to any

person who may have sustained damage thereby such compensation as may be just ...". 125. At p 1473 His Honour said: "The Real Property Act provides machinery with respect to the use of caveats, and when the machinery is invoked a caveat is said to be lodged. Section 98, as I see it implies the existence of that machinery and that in accordance with it a caveat has been lodged but then

defines a further field of inquiry as to whether the caveator undertook the use of that machinery without reasonable cause. I cannot feel any doubt about the meaning of the phrase 'reasonable cause'. It consists of two words and whether the words are considered separately or together their meaning is, I think, well understood by lawyers and layman alike. Whether there has been an absence of reasonable cause requires, I think, a consideration of the circumstances existing both before and at the time the caveat was lodged". 126. In Bedford Properties Pty Ltd v Surgo Pty Ltd (1981) 1 NSWLR Wootten J. in considering s. 98 of the NSW Real Property Act held - (1) that the onus is on the person claiming compensation to show that the caveator acted without reasonable cause

(2) "reasonable cause" will be established not by actual possession of a caveatable interest, but by an honest belief based on reasonable grounds that the caveator has such an interest. See also Kaihu Valley Railway Company v Kauri Timber Co (1889) 11 NZLR 403: Wharawhara Haimona v Casey (1922) NZLR 45 5 at 465. 127. In Deputy Commissioner of Taxation v Corwest Management Pty Ltd 1978 WAR 129 Brinsden J. said at p 142: "The inquiry which the court is obliged to assume in relation to the ingredient concerning reasonable cause is not, as I see it, limited to whether or not the caveator has made out the claim of an interest or estate in the

subject land as protected by the caveat. There may be circumstances in which, though the estate protected by the caveat has not been made out, a court could still find the caveat not to have been lodged without reasonable cause." 128. In the Northern Territory the operative phrase is strengthened by the use of the word "wrongfully" and, since the fu ll phrase is "wrongfully and without reasonable cause", the onus lies on the person seeking the removal of the caveat to prove that the caveator acted both "wrongfully" and "without reasonable cause". Clearly the word "wrongfully" must mean something different from "without reasonable cause". Otherwise there would be no purpose in including it. I find little help from the authorities in def ining the word in this context. Some assistance may be gained by The Famemouth (1882) 7 PD 207 where the judgment of the Admiralty Court consisting of Hannan P. and Phillimore J. and 2 assessors held that a mere error of judgment on the part of a ship's captain did not amount to a "wrongful act or default" within the meaning of s. 242 of the Merchant Shipping Act. That may indicate at least that the word "wrongful" means something serious and culpable. Similarly in Emery v Emery (1946) NZLR 545 the Court of Appeal said that the expression "wrongful act or conduct" used in s. 18 of the New Zealand Divorce and Matrimonial Causes At included conduct recognised as blameworthy by the moral standards of the community whether or not it amounted to a recognised matrimonial offence. 129. These references are not particularly satisfactory because their context is far from that of the present case. They may however at least illustrate certain facets of the word "wrongfully" which I think appertain to it when used in s. 191 X. I think its juxtaposition with the expression "without reasonable cause" indicates that something beyond mere mistake or misapprehension of one's rights is contemplated i.e., something done which is not only without reasonable cause but morally blameworthy. See Oxford English Dictionary "in a manner contrary to the principles of justice or equity; unjustly, unfairly". On this interpretation a person who had a genuine, though mistaken or even irrational belief in his right to lodge a caveat would not be liable in compensation; but a person lodging a caveat knowing full well he had no reasonable cause to do so would be liable. 130. I have already acquitted Mr Rohde of mala fides in endeavouring to insist on the performance of the contract as he saw it. There is no doubt that the wording in the contract was unfortunate, and though I have come to an interpretation against what the defendant puts forward, there is no doubt that the defendant had an arguable case. In those circumst ances, and the onus being on the plaintiff, it has not established in my view that the lodging of the caveats or either of them was without reasonable cause, and a fortiori, it has not been shown that it was wrongful. Accordingly the claim by the plaintiff for damages fails and the plaintiff does not seek and makes out no other head of damages, save on rescission which does not apply. 131. Although it has not become necessary to deal with the value of the strip of land originally part of Section 9 it may be appropriate if I say something as to the three valuations tendered. The Valuations of the Land 132. Although it has not become necessary to examine the value of the disputed strip of land, it may be of assistance to the parties if I indicate my views on the evidence. 133. Three valuers gave evidence, one called by the defendant and two by the plaintiff. I say at once that I accept all three as properly qualified and expert in their field. 134. Mr Doyle for the defendant valued the strip of land at $64,000-00. Mr Mooney valued at $20,000-00. Mr Buckley at $ 12,500-00. 135. Mr Doyle agrees that he was asked to value the land as a separate block. I think there are some difficulties in this. Leaving aside the question of costs of subdivision Mr Doyle concedes that about 80% of the land is subject to flooding. He has used comparable sales of land which he says was much higher ground but still had some access to permanent water but, he says, much rougher country and the water would dry back to water holes in the dry. Nevertheless I do not consider he has made proper allowance for the problems of inundation for prospective purchasers seeking land for recreational purposes. Nor do I agree with him that any value to be drawn from the sale of other Finnis River blocks should be in part discounted because the auction was a liquidation sale. This was not a sudden forced sale under pressure. It was widely advertised and purchasers had ample time to assess it. On Mr Southwell's evidence the sale went better than he thought it would and most of the creditors have been paid 100 cents in the dollar and he believes there will be a residual balance. Mr Hiley points out that since Mr Doyle conceded that a similar strip of land fronting the river in Lot "C" being also 160 hectares would be similarly valued i.e. at $64,000-00 then the combined value of those two st rips of 320 acres in toto was more than the purchaser had paid for the full 1750 hectares of Lot "C" as he believed it to be. Mr Coulehan quite naturally demurs to that sort of argument and says that if the purchaser got a bargain he was still entitled to its fruits. No doubt. But it may also indicate that the valuation is too high. 136. I am not persuaded that the number of carpentaria palms on the block added significantly to its value. Mr Rohde certainly believed there was a market for the larger palms but I can only regard as not proven the suggestion that the expense of uprooting the palms and transporting them for sale would be worth it. 137. On the whole I consider that the better approach is that adopted by Mr Buckley and Mr Mooney using what in a number of textbooks on land valuation to which Mr Hiley has referred me is known as the "before and after" method. This is achieved by two valuations one before and one after the severance of part of the land under consideration. It has judicial approval. In Realty Corporation Ltd v The Commissioner for Main Roads 14 LGR 204 Roper J. said: "It appears to me that the easiest and the proper way to determine the value of the land resumed and the damage to the residues by severance is to ascertain the difference between the value of the lots before resumption and the value of the residues after resumption." 138. Mr Buckley applies this method rather broadly by taking, after examining comparable sales, a value of $79-00 per hectare of the property and simply giving that value to the excised land i.e. 159 hectares at $79-00 per hectare = $12,553-00, which he rounds off to $12,500-00. That seems to take no account of the better situation of the land along the river. 139. I would therefore accept the valuation of Mr Mooney. His report (Exh. "BB") makes this observation:- "It is considered reasonable to accept the agreed purchase price of $125,000-00 as the value of Section 9 with the 158.9 hectares which gives every benefit to the purchasers as they apparently claim that was what was being purchased." 140. He then averages that to a purchase price of $71-47 per hectare but then allocates a higher value to the river front age of $114-85 per hectare rounding that off to $20,000-00. 141. He concludes that "the loss of value due to the exclusion of the 158.9 hectares is therefore assessed at $20,000". 142. Had it therefore been necessary to value the excised land I would have accepted that valuation. Costs 143. I propose to reserve the question of costs. It seems to me that the defendant here was to some extent led into a false position by some carelessness on the part of the plaintiff's agents. That is not to acquit the defendant of some lack of care itself, but I think both parties should have the opportunity to argue the question.