Manna v Manna and Anor [2008] ACTSC 10 (18 February 2008)

Last Updated: 21 February 2008

ROSA MANNA v DAMIANO MANNA and PETER MANNA

[2008] ACTSC 10 (18 February 2008)

SUCCESSION - Family provision and maintenance - Deceased intestate - Entitlement of widow and two sons - Administration and Probate Act 1929 ss 49, 49G, Part 6.1

EQUITY - General Principles - Mistake - Whether deed voidable because of mistake as to law

Administration and Probate Act 1929 (ACT), s 49G

Family Provision Act 1969 (ACT)

Wills, Probate and Administration Act 1898 (NSW), s 61D

Solle v Butcher [1950] 1 KB 671

Laurence v Lexcourt Holdings Ltd [1978] 2 All ER 810

Grist v Bailey [1967] Ch 532

Goldborough Mort & Co Ltd v Carter [1914] HCA 80; (1914) 19 CLR 429

McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377

David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353

Svanosio v McNamara [1956] HCA 55; (1956) 96 CLR 186

Lukacs v Wood (1978) 19 SASR 520

Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235

Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407; [2003] QB 679

Bell v Lever Bros Ltd [1931] UKHL 2; [1932] AC 161

Clark v Lindsay (1903) 19 TLR 202

Cooper v Phibbs (1867) LR 2 HL 149

Bingham v Bingham (1748) 1 Ves Sen 12

Norwich Union Fire Insurance Society Ltd v William H Price Ltd [1934] AC 455

Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328

Clasic International Pty Ltd v Lagos [2002] NSWSC 1155; [2002] 60 NSWLR 241

Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; [2003] 56 NSWLR 298

Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, 432

Certoma, G L, "Intestacy in New South Wales: The 1977 Statutory Amendments" (1979) 53 Australian Law Journal at 77

Equity Doctrines and Remedies, Meagher, Gummow and Lehane (2^nd ed)

No. SC 368 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 18 February 2008

IN THE SUPREME COURT OF THE )

) No. SC 368 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROSA MANNA

Plaintiff

AND: DAMIANO MANNA

First Defendant

AND: PETER MANNA

Second Defendant

ORDER

Judge: Higgins CJ

Date: 18 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. There be a declaration that the deed was executed under a common mistake as to the effect of Section 49G of the Administration and Probate Act 1929 (ACT); and

2. Parties be further heard as to whether the deed is voidable as a result.

1. The plaintiff, by application dated 12 June 2007 seeks an order setting aside a deed, undated, but signed on or about 28 October 2005 and an order pursuant to s 49G(3) extending the time limit for making the election provided by s 49G(1) of the Administration and Probate Act 1929 (ACT) (A&P Act).

2. The claim and the deed arose out of the death on 24 May 2004 of the plaintiff's husband Luigi Manna (the deceased). The defendants are the deceased's two sons, Damiano Manna and Peter Joseph Manna.

3. The facts are not in dispute, though the status of the deed is. The deceased died intestate.

4. In March 2005 the plaintiff sought advice from Mr John Memmolo, a solicitor of the firm Romano Satsia Kordis Legal, concerning her rights and obligations arising out of the administration of the estate of the deceased.

5. Mr Memmolo rendered an advice in writing by letter dated 3 March 2005. That letter I set out in full below:

Dear Messrs,

Re: Estate of the Late Luigi Manna

Mrs Manna [sic] has called at our office and instructed that you have decided to retain the property known as 21 Bradfield Street, Downer in that share that you would be entitled under the Administration and Probate Act 1929.

We enclose for your information the pertinent sections of the above Act that are applicable in this situation.

Section 49(1) - provides that the persons entitled to take an interest in an intestate estate, and the interest in that estate that those persons are entitled to take shall be ascertained by reference to Schedule 6.

Section 49(3) - provides that for the purpose of Schedule 6, the value of an intestate estate shall be ascertained by deducting from the gross value of that interstate [sic] estate an amount equal to such of the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties payable in relation to the estate as are payable out of that intestate estate.

Schedule 6 provides that if the intestate is survived by a partner and issue and the value of the estate exceeds $150,000.00, the partner is entitled to be paid out of the intestate estate -

(a) $150,000.00; and

(b) Interest on that sum, calculated at the rate of 8% per annum from the date of the death of the intestate to the date that sum is paid or appropriate to the partner, and

(c)

(i) An additional sum equal to;

(ii) If more than one child, 1/3 of the value of the balance of the intestate estate.

Please note that the assets that form part of estate are only those assets that were in the sole name or ownership of the late Mr Manna. Any asset/s held as joint tenants with Mrs Rosa Manna would have passed into the sole ownership of Mrs Rosa Manna by virtue of survivorship. The only asset held by the late Mr Luigi Manna in his own name was the property located at 21 Bradfield Street, Downer, ACT, and valued by JD Perryman Valuation on the 11^th November, 2004 at $500,000.00. Mrs Rosa Manna has instructed that she repaid a bank loan in the sum of $100,000.00, which was secured by way or [sic] mortgage against the said property. She is entitled to reimbursement with said amount and she is also entitled to be reimbursed for all funeral expenses incurred by her.

If it is assumed that the claim by Mrs Rosa Manna is only for the bank loan repaid, namely, $100,000.00, then the nett worth of the late Mr Luigi Manna's estate is $400,000.00. Out of this estate Mrs Rosa Manna has to be paid $150,000.00, leaving a balance of $250,000.00 which in turn is to be split in three equal shares, each in the sum of $83,333.33. Therefore, Mrs Rosa Manna's share of the estate is (please note that this calculation is based on the above hypothesis and does not include funeral and testamentary expenses and interest that Mrs Rosa Manna is entitled to be reimbursed and/or paid) $333,333.34. Messrs Damiano and Pietro Manna are entitled to $83,333.33 each.

If the Crown Lease to 21 Bradfield Street, Downer ACT was to be retained in the shares calculate as above; then Mrs Rosa Manna would be entitled to a 666/1000 share and Damiano and Pietro Manna 137/1000 share each.

Yours faithfully,

ROMANO SATSIA KORDIS LEGAL

Per: John Memmolo

Consultant

6. On 21 July 2005 the plaintiff was granted Letters of Administration of the intestate estate of the deceased.

7. Then, on or about 28 October 2005 the plaintiff and the two defendants, each being adults, signed a deed (the Deed). It was undated. I set out the terms of the Deed below:

THIS DEED is made the day of 2005.

BETWEEN Rosa Manna of 21 Bradfield Street, Downer in the Australian Capital Territory of the first part,

AND Damiano Manna of 21 Bradfield Street, Downer in the said Territory of the second part,

AND Peter Joseph Manna of 21 Bradfield Street, Downer in the said Territory of the third part.

WHEREAS

A. The parties of the first part, second part and third part are respectively the wife and two sons of the late Luigi Manna who died intestate on the 24 May 2004 and Letters of Administration were granted to Rosa Manna on the 21 July 2005.

B. The only asset standing in the sole name of the said deceased was the Crown Lease of Land in respect of Block 17 Section 60 Downer and known as 21 Bradfield Street, Downer in the said Territory and valued by JD Perryman Valuations on 11 November 2004 at five hundred thousand dollars ($500,000.00).

C. At the time of the death of the late Luigi Manna the said property was mortgaged to Bendigo Bank Limited securing a loan in the sum of one hundred thousand dollars ($100,000.00) which loan was repaid by Rosa Manna and she is to be reimbursed said amount.

D. The parties of the first, second and third parts wish to retain the property in the share that they would be entitled to take pursuant to Schedule 6 of the Administration and Probate Act 1929.

E. Following the reimbursement to said Rosa Manna of the amount referred in Recital C the nett value of the estate of the late Luigi Manna is four hundred thousand dollars ($400,000.00) from which amount the said Rosa Manna is to be paid pursuant to the provisions of the said Administration and Probate Act the first one hundred and fifty thousand dollars ($150,000.00) plus one third of the value of the remainder and the said Damiano Manna and Peter Joseph Manna are each to receive one third of the remainder.

F. The parties of the second and third part have requested

NOW THIS DEED WITNESSES that the Crown Lease of the Land being Block 21 Section 60 Downer is to be held by Rosa Manna as trustee for the said Rosa Manna, Damiano Manna and Peter Joseph Manna in the following shares that is to say to the said Rosa Manna six hundred and sixty six one thousandth shares, and to the said Damiano Manna and Peter Joseph Manna one hundred and sixty seven one thousandth shares each as tenants in common.

IN WITNESS WHEREOF the parties hereto have set their hands and seals the day first herebefore written.

Signed sealed & Delivered

by the said Rosa Manna

in the presence of

Signed sealed & Delivered

by the said Damiano Manna

in the presence of

Signed sealed & Delivered

by the said Peter Joseph Manna

in the presence of

8. On 9 February 2007, the plaintiff's present solicitor, Mr Ric Lucas of Colquhoun Murphy, solicitors, wrote to the second defendant Peter Manna and then to the first defendant, Damiano Manna, asking them to agree to the revocation of the Deed.

9. Those letters are in similar form. I set out the substantive parts below:

I act for your mother Rosa. I do not act for you, and I recommend that you seek your own legal advice about this letter.

I have examined the files of Romano Satsia Kordis.

It is apparent that the advice given as to your entitlements was wrong, and in my view it was negligent. By letter of 3 March 2005 (enclosed) Mr Memmolo advised that under the Administration and Probate Act 1929 you were entitled to one sixth of the value of 21 Bradfield Street, Downer. He did so despite your mother telling him that she wanted the house in her name.

In fact s49G of the Act entitled your mother to claim the whole dwelling house in satisfaction of her share. Furthermore, she was entitled to claim under s 8 of the Family Provision Act, and in our view the Court could be expected to award her the sole ownership of 21 Bradfield Street, Downer under that provision.

The file of Romano Satsia Kordis indicates that as a result of the wrong advice, a Deed was signed by you, your brother and your mother on about 28 October 2005, and returned undated.

That Deed is the result of a common mistake, because it recites that Rosa Manna is to be paid pursuant to the Administration and Probate Act $150,000 plus one third of the balance of the estate.

10. In essence, those letters set out the plaintiff's contention in respect of this matter.

11. The terms of the Deed reflect Mr Memmolo's advice. Only the second defendant, Peter Manna, now appears to contest the orders sought. The first defendant offers no opposition to the orders sought by the plaintiff.

12. Schedule 6 of the A&P Act provides that where, as here, the value of the intestate estate exceeds $150,000 then the partner (this includes widow) of the deceased where there are, as here, surviving issue, is entitled to (see Pt 6.1, Item 2):

(a) $150,000; and

(b) interest on that sum, calculated at the rate of 8% per annum from the date of the death of the intestate to the date that sum is paid or appropriated to the partner (inclusive); and

(c) an additional sum equal to -

...

(ii) ... 1/3 of the value of the balance of the intestate estate.

13. The children of the deceased, that is, the defendants, are entitled to the remainder, if any, in equal shares.

14. However, the advice of Mr Memmolo did not refer to s 49G of the A&P Act, which provides as follows:

49G. Claim by partner to dwelling house

(1) Subject to this division, if the intestate estate of an intestate who is survived by a partner comprises or includes an interest in a dwelling house where the partner was residing at the date of the intestate's death, the partner may elect to have that interest appropriated under the Trustee Act 1925, section 46 in or towards the satisfaction of any interest of the partner in the real and personal property of the intestate.

(2) An election under this section may be exercised within a period of 1 year after the date representation in the estate of the intestate is granted by the supreme Court or within any extended period the court allows.

...

15. There is also an application by the plaintiff under the Family Provision Act 1969 (ACT) for an adjustment of the interests of the plaintiff and the defendants but only if the Deed is not set aside.

16. Ms Saunders, counsel for the second defendant, contended that s 49G should not be interpreted so as to place the plaintiff in the position of a joint tenant. That is to say, she contended that it merely allows the interest of the spouse as specified in Schedule 6 to be credited against the value of the dwelling house. That would have the effect that the interest of the two sons of the deceased in the estate would not be diminished by the transfer of the matrimonial home in specie to the plaintiff. Thus, she could require the transfer to her of the matrimonial home subject to the interest of her sons, much as provided by the Deed, allowing her to convert her interest in the estate into a share in the matrimonial home.

17. The contention to the contrary, put by Mr Lucas for the plaintiff, is that s 49G, properly construed, grants to the plaintiff the option of accepting the interest of the deceased in the matrimonial home in satisfaction of her interest in the estate should there be nothing over and above that, or otherwise as a credit against that value should the interest of the surviving partner exceed the value of the interest in the estate he or she has according to Schedule 6.

18. In this case, it was agreed that the value of the estate did not exceed the net value of the interest of the deceased in the matrimonial home. Thus, if Mr Lucas' contention is right there is no surplus to be divided between the defendants.

19. Section 49G was introduced into the Act (then an Ordinance) in 1967. A similar provision was inserted into the Wills, Probate and Administration Act 1898 (NSW) ( WP&A Act). That provision is, relevantly,

61D. Rights of surviving spouse with respect to shared home

(1) Subject to the Fourth Schedule, where:

(a) an intestate dies leaving a spouse and issue,

(b) the value of the estate of the intestate (excluding any household chattels) exceeds the prescribed amount,

(c) the intestate, at the time of the intestate's death, held an interest in a dwelling-house which is situated in New South Wales, and

(d) that dwelling-house was, at that time, occupied by the intestate and the intestate's spouse or by the intestate's spouse as their, or as the spouse's, only or principal residence,

the spouse may require the administrator to hold that interest in trust for the spouse, and on being so required, the administrator shall hold that interest accordingly.

(2) A reference in subsection (1) to the spouse of an intestate is, where the intestate dies leaving a spouse and a de facto spouse, a reference to the spouse or de facto spouse for whom part of the estate is required to be held in trust under section 61B(3), (3A) or (3B).

20. That provision was intended, if the surviving spouse exercised his or her option, to reduce the interests of surviving issue not merely to be a credit against the interest the surviving spouse would otherwise have had (see Certoma, G L, "Intestacy in New South Wales: The 1977 Statutory Amendments" (1979) 53 Australian Law Journal at 77, 79-81). There is no reason why s 49G should not be similarly construed.

21. The issue was, however, further complicated by the suggested application of s 49K(c) A&P Act. That provides:

If -

...

(c) the whole or part of a dwelling house was, at the date of an intestate's death, used as a hotel or boarding house; or

...

the right given by this division to a partner of the intestate in relation to the dwelling house is not exercisable by the partner unless the Supreme Court so orders, being satisfied that the exercise of that right is not likely to -

(e) diminish the value of the assets (other than the interest in the dwelling house) in the intestate estate; or

(f) make those assets more difficult to dispose of.

22. The plaintiff deposed that the dwelling is in essence three living units - one had been occupied by the second defendant and, since the death of the deceased, she had let the third portion to students as boarders. She did not depose that that had been the case before the death of the deceased. The use of the dwelling by the second defendant was an ordinary domestic arrangement, not constituting use of the dwelling as a "boarding house" even if the second defendant had paid board to his parents. There was no contention to the contrary.

23. Section 49K of the A&P Act is equivalent to Sch 4 Cl 3(2) of the New South Wales WP&A Act.

24. Section 49G of the A&P Act is not materially different from s 61D of the WP&A Act. In my view, s 49G would serve no useful function if it did no more than credit the value of the surviving partner's interest in the intestate estate against the deceased's interest in the matrimonial home leaving the surviving partner, if she or he could, to pay out the other beneficiaries the sums provided for by the Sixth Schedule.

25. It follows that the Deed did not reflect the benefits granted to the plaintiff under the A&P Act as Mr Memmolo apparently believed it did. It further follows that the three parties executed the Deed under a mistaken belief that the law granted no greater benefit to the plaintiff than that secured by the Deed save that her interest in the estate was expressed as a share in the Crown Lease as tenant in common rather than as a right to a distribution from the estate. There was no provision in the Deed restricting the right of either of the defendants to transfer their minority interests in the property.

26. Neither counsel contended that, if in truth the Deed was executed pursuant to an underlying common assumption that was incorrect in law, the deed should not be set aside. Traditionally mistakes as to law were regarded as inoperative to set aside an agreement whether expressed in terms of a deed or not. That did not stand in the way of decisions such as Solle v Butcher [1950] 1 KB 671, where the mistake was as to whether the flat in question was covered by rent restriction legislation. In Laurence v Lexcourt Holdings Ltd [1978] 2 All ER 810, the operative mistake was as to the permitted use of a building under the relevant planning laws. In Grist v Bailey [1967] Ch 532, the operative mistake was the assumption that a sitting tenant constituted a statutory encumbrance. In each case where the mistake was held to be operative the agreement was set aside.

27. In Solle v Butcher (supra), Denning LJ (as he then was) said at 693:

A contract is also liable in equity to be set aside if the parties were under a common misapprehension either as to facts or as to their relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault.

28. The doctrine expressed by Denning LJ in Solle v Butcher (supra) was based on equitable principles. The common law did not recognise common mistake as a vitiating factor to an agreement unless the subject matter of the contract as a result of the mistake could not be identified or did not exist. That result was explained in Goldborough Mort & Co Ltd v Carter [1914] HCA 80; (1914) 19 CLR 429 at 437 as resting on an implied term as to the existence of the subject matter of the agreement. This did not, however, avail the Commonwealth in McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377. The actual existence of the mythical shipwreck in that case was held not to be a pre-condition for a valid agreement.

29. That case denies, effectively, any general principle that common mistake, even as to a fundamental fact, will vitiate an otherwise binding contract.

30. The correctness of the view asserted by Denning LJ (as he then was) in Solle v Butcher (supra) was doubted by the learned authors of Equity Doctrines and Remedies, Meagher, Gummow and Lehane (2^nd ed, 1417-1426).

31. The learned authors do note two things. First, consistently with David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, the distinction between errors of law and errors of fact is often meaningless. Second, that the High Court in Svanosio v McNamara [1956] HCA 55; (1956) 96 CLR 186, had refused equitable relief in the case of mistake as to the ownership of land on which a hotel was sited. However, the hotel was only partly not sited on the land conveyed. Dixon CJ and Fullagar J did acknowledge that equity would undo a sale if there was, effectively, a total failure of consideration. There was no such failure in that case. In the case of Lukacs v Wood (1978) 19 SASR 520, where the wrong block of land was conveyed, the agreement was set aside.

32. Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, was a case where a compromise of a damages claim was impugned on the ground that agreement to it was given without the authority of the injured plaintiff. That fact the plaintiff failed to establish. However, at 243-4, the Court (per Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) said:

The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.

33. In that case, despite the fact that the consent of the plaintiff to the compromise was "unwilling and ephemeral" it was real. She could not, therefore, have it set aside.

34. In the United Kingdom, the correctness of the decision in Solle v Butcher (supra) was considered in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407; [2003] QB 679.

35. The Court of Appeal noted the difficulty of reconciling Bell v Lever Bros Ltd [1931] UKHL 2; [1932] AC 161 and Solle v Butcher (supra). The trial judge had declined to follow Solle v Butcher, challenging the premise that equity would permit a contract entered into under a common mistake to be rescinded or set aside.

36. The facts were that a contract for salvage services was concluded between the parties. The parties assumed the vessels in question to be only 35 miles apart. They were in fact 410 miles apart. The hirers claimed to be entitled to rescind the agreement at law or in equity.

37. This was, therefore, not a case where the subject of the contract either never existed or had perished. Rather it was a common mistake as to an attribute of that subject matter, albeit a significant one. That may, as in Clark v Lindsay (1903) 19 TLR 202, lead to a conclusion that frustration had avoided the contract (room to view the coronation procession).

38. The Court rejected the notion that the theory of the implied term sufficed to explain either frustration or common mistake cases.

39. Their Lordships suggested the following as necessary elements to avoid a contract by reason of a common mistake (at 703):

[76] (i) There must be a common assumption as to the existence of a state of affairs; (ii) there must be no warranty by either party that that state of affairs exists; (iii) the non-existence of the state of affairs must not be attributable to the fault of either party; (iv) the non-existence of the state of affairs must render performance of the contract impossible; (v) the state of affairs may be the existence, or a vital attribute, of the consideration to be provided if the contractual adventure is to be possible.

40. McRae v The Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377 was to be explained, in their Lordships' view, on the basis of construction of the agreement.

41. Cooper v Phibbs (1867) LR 2 HL 149, superficially similar to the present case, was one of innocent misrepresentation. The party already in law was entitled to that which was agreed to be given to him (see also Bingham v Bingham (1748) 1 Ves Sen 12).

42. Norwich Union Fire Insurance Society Ltd v William H Price Ltd [1934] AC 455 was regarded as a case, not of mutual or common mistake, but of monies paid out under a mistake of fact (that is, that insured cargo of lemons had been destroyed by a peril insured against not sold in transit before they over ripened as was the case).

43. Their Lordships concluded that Solle v Butcher (supra) should not be followed, thus denying equitable jurisdiction to set aside an agreement which, though valid in law, was tainted by a mutual or common mistake making it significantly different in effect from that which the parties assumed to be the case.

44. The mistake in the instant case, their Lordships agreed, did not render performance practically impossible, it did not, therefore, render the agreement void or voidable.

45. That decision was approved by the Queensland Court of Appeal in Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328 (McMurdo P, Jerrard JA and Atkinson J).

46. The case concerned an agreement to vary a contract for the sale of land. However, McMurdo P considered that, on the facts, the variation had not been the result of any common mistake. Thus, her Honour found no need to consider the Great Peace Shipping decision (supra).

47. Jerrard JA considered that on any proper construction of the contract the decision to affirm it, though asserted to be the result of a mistaken view of the law, was not a result of any such mistake. His Honour went on to state:

[25] Accordingly, while I agree with the analysis of the law undertaken by Atkinson J - other than I consider Cooper v Phibbs was a case of mistake (even at common law) in which only an equitable remedy was appropriate - no relevant mistake operated to cause the contract to be affirmed, or the date 12 October 2004 settled upon as the completion date.

48. Atkinson J did address the question of common mistake, a doctrine addressed, as her Honour noted, by Palmer J in Clasic International Pty Ltd v Lagos [2002] NSWSC 1155; [2002] 60 NSWLR 241, albeit without reference to the later Court of Appeal decision in the Great Peace Shipping decision.

49. Given the negative comment on Solle v Butcher by Heydon JA in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; [2003] 56 NSWLR 298, her Honour was persuaded that, though not binding, the Great Peace Shipping decision should be followed in preference to Solle v Butcher and those decisions following it, notwithstanding the qualified approval offered by Mason CJ, Murphy and Deane JJ in Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, 432.

50. Even so, it was her Honour's view that, even if the Solle v Butcher test was applied, the appeal would fail. First, there was no mistake. Even if there was, the performance of the agreement was not thereby rendered impossible. Even if that was the test then, according to Taylor v Johnson, the appellant would also need to show that the respondent had been aware of its misapprehension and had deliberately set out to ensure that it remained in that state of misapprehension.

51. It is apparent that whilst there are serious doubts about the application of the rule in Solle v Butcher or some like equitable principle enabling the setting aside of a contract, otherwise valid at law, there is no binding authority requiring that result.

52. Enough emerges for me to conclude:

* The solicitor's advice that the beneficiaries were entitled, at the death of the deceased, to shares in the estate as specified in the Deed was wrong.

* At that time the plaintiff was entitled to the deceased's interest in the matrimonial home if she elected, as she did, to have it without reduction by reference to any interest the defendants otherwise might have had.

* The plaintiff has made out a good case for an extension of time to elect to do so.

53. However, it is by no means clear to me that she is entitled to set the Deed aside because of the common mistake of the parties as to the effect of s 49G, A&P Act.

54. I can declare that the Deed was executed under a common mistake of the parties as to the effect of s 49G, A&P Act. It was induced in good faith by erroneous legal advice. I am not satisfied, however, that the consequence is that the Deed is voidable. I wish to hear the parties further on that point.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 18 February 2008

Counsel for the plaintiff: Mr E Lucas

Solicitor for the plaintiff: Colquhoun Murphy

Counsel for the second defendant: Ms J Saunders

Solicitor for the second defendant: Legal Aid Office (ACT)

Date of hearing: 8 October 2007

Date of judgment: 18 February 2008