Mistakes

Question 1

Define mistake

Answer 1

In common law, it means mistake of fact. In statutes, it is a mistake of law under s 23(2)

Question 2

Mistakes at Common Law (3)

Answer 2

1. Unilateral Mistake - Only one party was mistaken
2. Common Mistake - Both parties are mistaken by the same mistake
3. Mutual Mistake - Both parties are mistaken but by different mistakes

Question 3

Qualifying Mistakes (3)

Answer 3

1. s24(1)(a)(i) - Only one party affected and the mistake was known to the other party
2. s24(1)(a)(ii) - Both parties were influenced by the same mistake
3. s24(1)(a)(iii) - Both parties were influenced by a mistake but a different mistake

Question 4

Cases for i ii and iii

Answer 4

i. King v Wilkinson (Fencing on property including neighbours land)
ii. Ware v Johnson (Kiwifruit had been sprayed with wrong herbiside and died, unknown to both)
iii. Conlon v Ozolins (Sale of all 4 plots)

Question 5

What does Non est Factum mean?

Answer 5

“It is not my deed” and is a common law doctrine to avoid honouring a document they signed.

Question 6

Four requirements for pleading the Defence of Non est factum

Answer 6

1. Proponent must have signed a document believing it to have a certain character
2. In reality it must have had a RADICALLY different character
3. The proponents mistaken belief must have resulted from an erroneous explanation given to them by the fraudster
4. The proponent must have acted with all reasonable care in signing the document

Question 7

Cases for 1st and 2nd Requirement of Non est factum

Answer 7

1. Gallie v Lee (House transfer to wrong person)
2. Landzeal v Kyne (Restraint of trade clause)