Beck v Kucks [2026] QSC 35

SUPREME COURT OF QUEENSLAND CITATION: Beck v Kucks [2026] QSC 35 PARTIES: JESSICA ELLEN BECK (first plaintiff) KRISTIAN FREDERICK BECK (second plaintiff) v NADINE RUBINA KUCKS (first defendant) MICHAEL ALLAN KUCKS (second defendant) FILE NO/S: BS 5773/25 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 March 2026 DELIVERED AT: Brisbane HEARING DATE: 4 March 2026 JUDGE: Wilson J ORDER: 1. Parties are to provide a form of order consistent with these reasons by 10am on Thursday, 26 March 2026. 2. Question of costs adjourned to a date to be fixed. CATCHWORDS: EQUITY — REMEDIES — SPECIFIC PERFORMANCE — MISLEADING OR DECEPTIVE CONDUCT – MISTAKE — Availability of specific performance to enforce a contract for the sale of a residential property for $1,210,000 – Where the defendants signed the contract without reading it – Where the defendants subsequently sought to rescind the contract on the basis that the agreed price was $1,355,000 – Where the plaintiffs sought a declaration that the defendants breached the contract by failing to proceed with settlement in accordance with the terms of the contract –Where the plaintiffs sought a declaration that the respondents pay the plaintiffs’ damages for breach of contract, including for loss suffered by the plaintiffs resulting from the defendants’ breach – Where the defendants, in counterclaim, submitted that they were entitled to primary relief in the form of recission of the contract for mistake – -- 1 of 19 -- 2 Where the defendants submit that the intended purchase price was $1,355,000 – Where the defendants submit that the contract failed to reflect the parties’ true common intention and actual agreement for a purchase price of $1,355,000 – Where the defendants plead relief under the Australian Consumer Law that the plaintiffs are liable for misleading or deceptive conduct and unconscionable conduct – Whether the parties were mistaken as to the contract price – Whether the plaintiffs took advantage of that mistake by failing to alert the defendants of the contract price – Whether the plaintiffs are liable for misleading and deceptive conduct or unconscionable conduct Competition and Consumer Act 2010 (Cth) sch 2 s 18(1) Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719 Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 266 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 L’Estrange v F Graucob Ltd [1934] 2 KB 394 Le v Bui [2008] QSC 149 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 O’Brien v Smolonogov (1983) 53 ALR 107 Re Border Express Pty Ltd [2023] VSC 769 Rees v Rees [2016] VSC 452 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liquidation) (2019) 99 NSWLR 317 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85 Storey v Britton [No 2] [2025] QSC 151 Taylor v Johnson (1983) 151 CLR 422 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Williams v Pisano [2015] NSWCA 177 COUNSEL: S A Scarlett for the plaintiffs C H Matthews for the defendants SOLICITORS: Hallewell Law for the plaintiffs Axia Litigation Lawyers for the defendants -- 2 of 19 -- 3 [1] This is a case about the perils of signing a document without reading it. [2] Mr and Mrs Kucks (‘the Kucks’) engaged real estate agents to sell a house on Fitton Road, Hodgson Vale. [3] On 22 September 2025, Mr and Mrs Beck (‘the Becks’) signed a contract, via DocuSign, for this house with the purchase price being $1,210,000 subject to some conditions (‘the contract’). [4] On 23 September 2025, the Kucks signed the contract, via DocuSign. They did not read the contract and thought the contract price was $1,355,000. There is no dispute between the parties that the Kucks: (a) made a mistake in signing this contract with a contract price of $1,210,000; and (b) would not have signed the contract had they known the purchase price was in fact $1,210,000. [5] Ultimately, even though at one stage the online real estate listing stated that the property sold for $1,210,000, the error was only discovered by the Kucks’ conveyancing solicitor on 28 October 2025. A flurry of correspondence between the Kucks’ and Becks’ solicitors then ensued with each party asserting their position. [6] By 31 October 2025, the Becks satisfied certain conditions in the contract, namely paying the deposit, receiving finance approval, and obtaining a satisfactory building and pest inspection. [7] Settlement of the contract was scheduled to occur on 3 December 2025 by electronic settlement using the PEXA platform. [8] On 27 November 2025, the Becks’ solicitors provided a settlement statement calculated on a purchase price of $1,210,000. [9] On 2 December 2025, the Kucks’ solicitors provided a settlement statement calculated on a purchase price of $1,355,000. [10] The parties were unable to agree upon the settlement figures. [11] On 3 December 2025, settlement did not occur. Instead: (a) the Becks asserted that the Kucks were in breach and purported to affirm the contract; and (b) the Kucks asserted that the Becks were in breach, then purported to terminate the contract and elected to keep the deposit. [12] On 5 December 2025, the Becks lodged a caveat over the property claiming an interest arising from the Contract. [13] On 9 January 2026, the Becks filed a claim and statement of claim, seeking relief, including: (a) a declaration that the contract remains on foot; -- 3 of 19 -- 4 (b) an order that the defendant specifically perform the Contract; (c) damages; (d) interest; and (e) costs. [14] On 4 February 2026, the Kucks filed a defence and counterclaim, seeking relief including: (a) a declaration that the contract is rescinded or void ab intio for unilteral mistake or contravention of the Australian Consumer Law (‘ACL’); (b) an order that the Becks withdraw or remove the caveat registered over the caveat registered over the property; (c) alternatively, rectification or an order to vary the contract so as to amend the purchase price of $1,210,000 to $1,355,000; (d) in the further alternative, damages or compensation for breach of contract, unconscionable conduct, or under the ACL; and (e) costs. Facts [15] It is not controversial between the parties that: (a) the Kucks signed the contract without reading it; and (b) in doing so, believed that the contract price was $1,355,000. [16] Where the controversy lies is with respect to the Becks’ belief and intention when they signed the contract with a purchase price of $1,210,000. [17] On 8 September 2025, the Becks submitted an expression of interest for purchasing this property for $1,200,000 (subject to a building and pest inspection, finance approval, and the sale of another property). [18] On 9 September 2025, the Becks submitted another expression of interest for $1,210,000 subject to the same conditions as their first expression of interest. [19] Mrs Beck was the primary negotiator for the property on behalf of the Becks. [20] The two real estate agents that Mrs Beck dealt with were Mr Lachlan Brown and Mr Heston Marino. Mr Marino was the director of the real estate agency. [21] After submitting these two expressions of interest, Mrs Beck was told by Mr Brown that the sellers of the property were not accepting, nor declining, any offers at that time. [22] Mrs Beck states that Mr Brown called her on 10 September 2025 and said words to the effect of: “The sellers are not accepting nor declining any offers at this stage. They are going to have another open house. They may well still accept your -- 4 of 19 -- 5 offer of $1,210,000 if they don’t get any better offers out of the further open house.” [23] Mr Brown had a different recollection as to this conversation: “(a) I recall phoning Ms Beck on 10 September 2025 regarding her $1,210,000 offer the day prior. (b) That call may have involved the broader team (Heston and Brian) in the room, although the call was conducted by me. (c) During that call, I told Ms Beck that an offer of $1,210,000 was not within an acceptable range for the sellers and that no offers had been accepted at that time. (d) I said that there would be a second inspection happening soon which I offered for her to attend. She told me words to the effect that she would not be attending as she had other homes to inspect. (e) I did not say words to the effect, or at all, that an offer of $1,210,000 was still under consideration or that the sellers may well still accept your offer of $1,210,000 because at that time there were offers above the $1,210,000 amount and it would not have made commercial sense for the Kucks to consider such an offer. At that stage, it was only the first week of the campaign and our intention was to continue marketing the Property.” [24] Mr Brown went on leave shortly after his conversation with Mrs Beck. On 19 September 2025, text messages were exchanged between Mrs Beck and Mr Brown’s work phone. [25] Mr Brown stated that he didn’t receive these messages from Mrs Beck, nor respond to them, as he was on leave. He states that the phone would have been in Mr Marino’s possession. The text messages were as follows: Mrs Beck: Just waiting to hear back from Heston regarding fitton. I thought he was following up after speaking with owners. Thanks Jess. Mr Brown’s phone: He jess, ill message Heston now! Unfortunately im out of state at the moment so havnt been kept up to date on Fitton Road Mrs Beck: I couldn’t remember how long u were away for. I did speak with him at start of week just hadn’t heard back. I’m in training now until 230. Thanks mate, enjoy your break. Mr Brown’s phone: Ive just sent him a message now, ill get him to call after 2:30 [26] Mr Brown states that he didn’t send these texts and that it would have been Mr Marino. However, Mr Marino also states that he did not send these text messages: -- 5 of 19 -- 6 “And you wouldn’t have been using it on the 19th of September in these phone conversations? You wouldn’t have sent these messages to Jess?‑‑‑Well, it’s in third party, so no. HER HONOUR: What do you mean by that?‑‑‑Well, it’s in third person. So it’s saying – um – “I’ll wait to hear back from Heston.” Well, if I’m Heston, I wouldn’t be saying that. And you don’t do that?‑‑‑No. No, I don’t speak in third person.” [27] Mrs Beck then sent a text to Mr Marino on 19 December 2025: Mrs Beck: Hey Heston, just chasing an update on Fitton road, haven’t heard back from you and assume Lachlan is on leave. Have you got a figure for us to come back over or are you having another open etc? Thanks Jess Beck. [28] Mrs Beck states that she had two conversations with Mr Marino on 19 September 2025: “On 19 September 2025, I had two brief conversations with Heston for around three minutes at or around 2:38pm, and for around two minutes at or around 2:44pm. During those conversations, I put questions to Heston to the following effect: “Have you heard back from the sellers in relation to our offer of $1,210,000? Did the sellers receive any further offers out of the second open house? Are the sellers going to ‘hold off’ and have a third open house?”” [29] Mr Beck gave evidence that he thought the property was not worth anything more than $1,210,000. [30] Mrs Beck, who was pregnant with twins at the time, was keen on the property and wanted to negotiate something that would convince her husband to make a higher offer. Mrs Beck gave this evidence at the hearing: “…he’d already said that he didn’t want to go higher than 1.21. It was – the property wasn’t worth it, especially given the extent of the earthworks and landscaping that we’d have to do with the property to make it actually viable for us to utilise anyway. Um – I wanted the property, and I was pregnant and I was working full-time, so I was trying to do anything that would potentially convince him to be okay with going to the higher price point. And I thought that, given what the real estate told me with regards to that house only being their second house and their main house being back at the property at Theodore, and that they didn’t need it anymore because the kids had finished school, I was thinking that going to a higher price point would actually be mutually beneficial because they wouldn’t need all their stuff in the house. And, you know, it’s got five queen-size beds, like all the bedroom furniture, the lounge room furniture in three different lounge rooms. Like, it would have just been able to walk in and -- 6 of 19 -- 7 that would’ve been something that I would’ve hoped that I could go back to Kris and convince him that it was a good idea to go to the higher price point. But we never even got to that level of the negotiations because they couldn’t accept it and they sent back the contract for the second EOI.” [31] Mrs Beck first raised the issue of furniture on 20 September 2025, when she sent the following text to Mr Marino. Mrs Beck: Hey mate, do you know if the owners are planning on taking the furniture back to the property or maybe would be interested in selling? Just thinking .. (emoji) [32] A text exchange then occurred on 22 September between Mrs Beck and Mr Marino. Mr Marino: Hey Jess! Apologies for the late reply, I’ll give you a ring before lunch today. They were planning on taking it, however happy to discuss if you’d like? Thanks Heston | McGrath Mrs Beck: No worries, I was just thinking out loud. How do you want time to submit another offer? We can discuss when you call Mr Marino: Yes absolutely jess, we can go over that together. Mrs Beck: What time do you think you will call? I’m just at work so will step away to chat. [33] Then Mr Marino called Mrs Beck and they had a conversation which became a central focus of these proceedings. Each gave a different version of what occurred. [34] Mrs Beck stated that: “At or around 12:09pm on 22 September 2025, I spoke with Heston on my mobile for around four minutes. During that conversation: a. I said to Heston words to the following effect: Have the sellers come back with an answer regarding our EOI for $1,210,000? b. Heston said to me words to the effect that he was still waiting for the owners to come back with a decision. c. I said to Heston words to the following effect: If the owners are not going to accept that EOI, can you ask them if they would accept a higher price of $1,355,000 if furniture is included and if we can get early access? -- 7 of 19 -- 8 d. Heston said to me words to the effect that he would speak with the sellers and come back to me. e. I then said to Heston words to the following effect: Do I need to fill out another EOI form with the conditions? f. In reply, Heston said to me words to the following effect: Just send me a text message with the number in it and we can work out the conditions later.” [35] Mrs Beck sets out her reasons for proceeding in this way: “I was content to proceed in that way, including because I knew – and had read and understood the words on the “Expression of Interest” form referred to in paragraph 20 above – that no contract is formed until the contract documentation is properly completed and signed. I also knew that if they were agreeable to negotiate on the higher price point we would still need to negotiate and agree on early access terms and what furniture would be included for the higher amount.” [36] On the other hand, Mr Marino states that the conversation went this way: “On 22 September 2025 at around midday and after my text message to Jessica that morning, Jessica and I had a telephone conversation regarding their previous offer, relevantly being the second expression of interest for $1.21m. During this conversation, I was in the boardroom at my office. During the call, I indicated to Jessica that their offer needed to be at least in the mid-$1.3million range to be competitive but that I could not tell them the amounts of the other offers we had received. In that conversation, Jessica indicated words to the effect that the Becks were prepared to offer $1,355,000 for the Property, subject to the same conditions as their previous expression of interest (including subject to sale, building and pest, and finance). She raised the possibility of including furniture (nothing specific) and early access as part of the deal. I told her firmly during that conversation words to the effect that the increased offer of $1,355,000 would not include any furniture because I understood that the Kucks were not in a position to agree to that. I explained that there were other offers at or around that price with no inclusions, and that the Kucks needed their furniture for their next property. I had previously checked with the Kucks (relevantly after receipt of the text message from Jessica on 20 September 2025), and they confirmed they needed to retain their furniture so in any deal that was reached, I was under strict instructions that their furniture was not to be included. I also told Jessica that early access could not be guaranteed but could be raised with the Kucks’ solicitors after the contract was signed. This was -- 8 of 19 -- 9 because the Kucks had not yet secured a new property and it was close to the Christmas period. Jessica asked if she should submit a new expression of interest with the revised terms. I told her to simply send me a text message confirming the increased offer of $1,355,000, and that I would arrange for the contract to be prepared.” [37] Mr Marino was clear in his evidence that he told Mrs Beck that furniture was not to be included in any offer: “Okay. So you said that – your evidence is that you told her during the 12.09 pm phone call. You firmly told her that it would not include furniture and it would not include early access. And then she sends you this text message after that conversation. My question – what I’m – what I suggest to you is that you did not firmly tell her that those things wouldn’t be included, which is why she sent this message?‑‑‑Um – that’s wrong. I always get multiple buyers telling me – reinstating and asking again and again, so – it’s one of those situations. Mr Marino, I put to you that you didn’t tell her that it wouldn’t be included, but you told her that you would ask the sellers?‑‑‑I would double and triple check. Pardon?‑‑‑I would double and triple check if there could be a possibility that I reaffirm that with her on the phone, and then I can see in that text message that says I’ll need the furniture. So it’s again reiterating I’ll need it. So you would have double and triple checked with the sellers if they were agreeable to including those conditions?‑‑‑Well, I previous checked with them multiple times, so I didn’t need to go back to them a fourth time to annoy my clients. And so you agree with me that you would have told her in that phone conversation that you would go and double, triple check?‑‑‑Not in the phone conversation. I told her that it wasn’t going to be included. But I get this all the time. Buyers trying to push it again. So it’s common. But we’re talking about this phone conversation, where you said that you’ve ‑ ‑ ‑?‑‑‑I – I told her that there was not furniture included with your offer. To be competitive. And my suggestion to you is that you didn’t say that, rather, you told her you would check?‑‑‑No.” [38] Accordingly, the effect of Mr Marino’s evidence is that he told Mrs Beck firmly that the $1,355,000 offer could not include any furniture and that he was under strict instructions from the Kucks that their furniture was not be included. [39] However, this is inconsistent with the Kucks’ evidence. -- 9 of 19 -- 10 [40] Mr Kucks stated that prior to giving the go-ahead to sell the property they told Mr Brown and Mr Marino that if the price was right, they would have let some furniture go. Mr Kucks stated that Mr Marino never told him that the Becks were interested in including furniture in the sale. Mrs Kucks stated that she never gave any instructions about furniture to the real estate agents. [41] Mrs Beck sent a text to Mr Marino at 12:17pm: Mrs Beck: Hey mate, as discussed, happy to proceed with an offer of 1,355,000 let me know how you go. Jess and Kris Beck. [42] This text does not illuminate the details of the conversation between Mrs Beck and Mr Marino, as it simply refers to “as discussed”. It does not confirm or refute either version of the conversation. [43] At 12:39pm Mr Marino sent the following email to a staff member with the subject line “contract”: “$1,355,000 increased offer 14 days finance once there property becomes unconditional on the sale of [number omitted] Rowbotham St. 21 days building and pest.” [44] About an hour later Mrs Beck sent another text: Mrs Beck: Did you ask owners re. Living room furniture and early access? [45] Counsel for the Kucks highlight that the text does not refer to all of the furniture and only refers to living room furniture which would be separate to the $1,355,000 offer as per Mr Marino’s recollection of the conversation. Mrs Beck was cross-examined about this text at the hearing: “Right. You don’t express – sorry. Can I take it that that message, or do you understand that message is asking Mr Marino whether he had spoken to the owners specifically about living room furniture and early access, and that’s referring to your earlier discussion; is that right?‑‑‑I believe that’s a typo, because I was at work between meetings, trying to negotiate a house, pregnant with twins, and I’ve just left off the extra. So it’s supposed to say, “did you ask the owners re living room furniture etcetera and early access.” HER HONOUR: Sorry. What did you miss out?‑‑‑Like e-t-c. So it’s supposed to say, re living room furniture etcetera, like as in all of the furniture, and early access. Because after I’d talked to him on the phone about the second – the third offer, and the inclusion of the early access and the furniture, I was concerned because I’d asked him if I should submit another expression of interest form so I could detail all of the special conditions and he told me just to text back a text message just with the number, and after I did it, that’s why I put specifically in there “as discussed” because I was nervous that he was trying to back me into a -- 10 of 19 -- 11 corner with that number without the inclusions and I sent it and then after it I got nervous again and I sent a secondary text just to make sure that it was in writing that I was requesting the furniture and early access as well. MR MATTHEWS: Okay. I put it to you that the – that text message was not meant to convey all furniture. That was meant to convey exactly what it says, that the living room furniture and early access, have you discussed that with the owners. That’s all it was intended to convey?‑‑‑Incorrect. Nup.” [46] To confine this text by Mrs Beck to only seeking lounge furniture is inconsistent with the text exchange that began at 1:20pm, where Mrs Beck set out what furniture she would be interested in: Mr Marino: Hey Jess! Sounds good we have just sent you contract to sign now, for my clients to re view, I’m trying to push your offer rather than the cash we have on the table. They’ll need there furniture, was there any specific you guys wanted? And early access they will definitely consider it but cannot make a promise just yet. Thanks Heston | McGrath Mrs Beck: No worries. I’ll send it back shortly. Will do it between my next two mtgs. Nothing specific with furniture I was thinking the lounge, rug, dining and outdoor just to save us time as there’s a 3 mth wait on lounges and the twins will have arrived. Mr Marino: Okay cool! Leave that with me I’ll confirm [47] Clearly, Mrs Beck was interested in more furniture than just the lounge furniture. [48] At the hearing, Mrs Beck was asked about Mr Marino’s text where he stated, “I’m trying to push your offer rather than the cash we have on the table:” “… surely you understood that to mean that he was pushing your offer that you had just made of $1,355,000?‑‑‑No. There was two offers. There was 1.21 with no conditions, or the three minimum and the 1.35 with the furniture and the early access. He came back and he said he sent me a contract and he’s pushing our offer, which is the contract, over the cash we had on the table, which cash is obviously notoriously a quite low offer. So when I read and it says “they’ll need their furniture” which again, is inclusive of “the furniture” because then he follows it up with, “was there anything specific you guys wanted.” So if I had asked him just for two specific things, he wouldn’t come back and say they need their furniture, was there anything specific you guys wanted, because the living room furniture is quite specific already. So after that ‑ ‑ ‑ …. -- 11 of 19 -- 12 Is your evidence in court today that when Mr Marino responds to you nine minutes after asking about the furniture and one hour and three minutes after you make a text message offer for 1.355 million, that when he uses the words, “I’m trying to push your offer, rather than the cash we have on the table”, is your evidence that you took that to mean the $1.21 million offer, not the one that you just texted?‑‑‑I took it to mean the contract that he just sent me. You hadn’t viewed it, though, you just told me?‑‑‑No, I hadn’t. Right?‑‑‑You’re asking me what price I thought was on it. I hadn’t viewed it yet. Right?‑‑‑I was thinking, because he said that they couldn’t do the furniture and they couldn’t do early access, then they must have accepted the 1.21 offer.” [49] Mrs Beck’s evidence is that upon receiving the contract with a purchase price of $1,210,000 she proceeded on the following basis: “I understood that message, and the draft contract that I had received, to mean that: a. the sellers were not prepared to agree to include all of the furniture that was in the house at Fitton Road in the contract nor were they prepared to include early possession in the contract; b. although they would not include all of the furniture in the contract, there was still a possibility that the sellers might be prepared to sell us some furniture ‘outside of the contract’; and c. although they would not include it in the contract, there was still a possibility that the sellers might allow us early possession.” [50] Considering the evidence, I am satisfied on the balance of probabilities that Mrs Beck was of the belief that she was making an offer of $1,355,000 which included the furniture and early access. [51] Counsel for the Kucks urged upon me that the text messages do not support Mrs Beck’s evidence. I do not agree. [52] Mrs Beck’s evidence is consistent with the text messages, and she gives cogent and plausible reasons behind the sending of her texts and her understanding of the text messages sent to her. [53] Mrs Beck states she was not aware or knew that the Kucks intended to enter a contract for the sale of the property for $1,355,000: “At the time you executed the contract on the 22 nd of September in the afternoon, you were aware or you knew that the owners intended to enter a contract for the sale of $1.355 million?‑‑‑Incorrect. I – I can’t know what they intended to do. I got the contract, and I believed that was them -- 12 of 19 -- 13 accepting the second expression of interest, and that’s what I discussed with my partner, and that’s what we signed.” [54] I found that the Becks were credible witnesses. [55] Mr Beck was clear in his evidence that he did not think the property was worth more than the $1,210,000. Mrs Beck was aware that her husband would not accept paying $1,355,000 for the property without additional inclusions. That is why, Mrs Beck states, she framed the offer to include furniture and early access. [56] Mr Beck gave differing accounts about when he became aware of his wife’s offer of $1,355,000 with early access and furniture included. However, ultimately at the hearing, Mr Beck stated that at the time he read the contract price, he had not discussed with his wife the $1,355,000 offer (with the additional inclusions). [57] I note that Mr Marino’s version of the conversation differed from Mrs Beck. His recollection is that the price discussed was for $1,355,000 without furniture and early access. This is supported by his email to his staff to prepare a contract for this amount. [58] However, I have some concerns with Mr Marino’s evidence. In particular his evidence that he told Mrs Beck firmly that the increased offer of $1,355,000 would not include furniture because he understood that the Kucks were not in a position to agree to that, and that he was under strict instructions from the Kucks that their furniture was not to be included. [59] Whether the furniture was to be included in the offer or not is an essential issue in these proceedings. Mr Marino’s justification for the furniture not to be included is inconsistent with the Kucks’ evidence about their conversations with Mr Marino about the furniture. In my view, such an inconsistency tends to cloud Mr Marino’s evidence about the contents of his conversation with Mrs Beck. [60] Recollections may vary about the contents of this conversation between Mrs Beck and Mr Marino. That is why it is best practice for all offers and expressions of interest to be in writing. [61] Ultimately, I found Mrs Beck a credible witness and I accept that she was of the understanding that her offer was $1,355,000 with furniture and early access included. [62] A contract was sent to the Becks for their signing. It was for a contract price of $1,210,000, which at this time had not been rejected and was still on the table. [63] The Becks gave evidence that they were aware that the contract’s purchase price was for $1,210,000 and that they signed the contract via DocuSign. [64] The signed contract was sent back to the real estate agents who then on-sent it to the Kucks to sign, which they did without reading it or checking the contract price. [65] In the circumstances of this case, I accept that the Becks: (a) knew what they were signing and were not at all mistaken as to the contract price; and -- 13 of 19 -- 14 (b) at the time they signed the contract, were not aware, or knew, that the Kucks intended to enter into a contract for the property for a purchase price of $1,355,000. The representation of signing a document [66] When a document containing contractual terms is signed, in the absence of fraud or misrepresentation, the party signing it is bound, and it is immaterial whether the party has read the document or not.1 [67] As stated by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (‘Toll’):2 “[45] It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents … whatever they might be. … [47] … Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.” [68] The Kucks submit that notwithstanding the written contract executed by the parties for the purchase price of $1,210,000, relief is available to correct the purchase price error. They raise a number of bases as to why this should occur, which are: (a) unilateral mistake and unconscientious advantage; (b) common intention of the parties; (c) estoppel; and (d) misleading or deceptive conduct. [69] None of these bases have any merit. Unilateral mistake and unconscientious advantage [70] A party who enters into a contract under a serious mistake as to a fundamental term, such as price, is entitled in equity to recission if the other party knew or had reason to know of the circumstances indicating the mistake and deliberately set out to ensure the 1 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [45], citing Scrutton LJ in L’Estrange v F Graucob Ltd [1934] 2 KB 394 at 403. 2 (2004) 219 CLR 165 at [45], [47]. -- 14 of 19 -- 15 mistaken party did not become aware of the error.3 As noted in Taylor v Johnson (1983) 151 CLR 422: “The particular proposition of law which we see as appropriate and adequate for disposing of the present appeal may be narrowly stated. It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension. What we have said is sufficient to demonstrate the broad basis of support which the authorities provide for that proposition. Moreover, and perhaps more importantly, it is a principle which is best calculated to do justice between the parties to a contract in the situation which it contemplates. In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party's actual mistake proceeds from wilful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it. Our comment can, for present purposes, be limited in its application to the case where the second party has not materially altered his position and the rights of strangers have not intervened.”4 [71] The Kucks submit that the Becks, acting through Mrs Beck, knew or can be inferred to have known of the pricing error, yet executed the contract without clarification deliberately to ensure that the Kucks did not become aware of the mistake or misapprehension. [72] There is no evidence to support such a submission. [73] As can be seen by my findings of fact, I am satisfied, on the evidence, that the Becks did not know did not know, nor ought to have known, that the Kucks were mistaken. [74] The Becks did not have any reason to have known that the Kucks were mistaken in circumstances where their real estate agent prepared the contract, the contract clearly stated the price, and the Kucks were under no pressure to sign the contract. [75] Upon receiving a contract in terms consistent with their second expression of interest and with no conditions for the inclusion of furniture or early access (together with the text messages from Mr Marino confirming the Kucks were not agreeable to those conditions), it was reasonable for the Becks to form a view that that their offer of $1,355,000 (with furniture and early access included) was not agreeable. 3 Taylor v Johnson (1983) 151 CLR 422, 432-433; [1983] HCA 5 at [14]; Rees v Rees [2016] VSC 452, [103]; Re Border Express Pty Ltd [2023] VSC 769 at [186]. 4 Taylor v Johnson (1983) 151 CLR 422, 432-433. -- 15 of 19 -- 16 [76] Accordingly, the Becks proceeded with a formal offer in terms set out in the second expression of interest. In my view, there was nothing untoward in any of this. [77] There is no evidence that the Becks, by signing the contract and sending it to the real estate agent to be sent to the Kucks to review, engaged “deliberately in a course of conduct…designed to inhibit discovery of it”.5 [78] The Becks did not know the Kucks; they have never met, nor spoken. [79] Negotiations were conducted through a real estate agent. The contract was sent by the Kucks’ real estate agent for the Becks to sign. Mr Marino sent an accompanying text saying: “we have just sent you contract to sign now, for my clients to re view.” By this text Mr Marino made it clear to the Becks that the Kucks would review the signed contract. [80] Further, the signed contract was sent back through the real estate agent (another possible set of eyes to review the contract) for the Kucks to review and sign. Common intention of the parties [81] The remedy of rectification permits a court to amend a written instrument so that it conforms to the actual, concurrent intention of the parties where the instrument, by common mistake, fails to express that agreement accurately.6 [82] Equity permits rectification because “it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered.”.7 [83] A contract may be rectified in equity where it is shown that there was, at the time the document was executed, a common intention which, through a common mistake, was not reflected in the document.8 Equity requires “clear and convincing proof” of the common intention.9 The insistence on a high standard of proof reflects a centuries-old concern not to undermine the integrity of written agreements.10 Rectification of contracts must be kept within narrow limits to avoid the “serious mischief” referred to by the High Court in Toll.11 Rectification also poses a danger of imposing on a party a contract which they did not make.12 [84] In this case, I am satisfied that the intention of the Becks when they signed the contract was to purchase the property for a contract price of $1,210,000. The Kucks’ intention was for the contract price to be $1,355,000. This is understandable since they already had an offer of $1,340,000 from another party. 5 Taylor v Johnson (1983) 151 CLR 422, 432-433. 6 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA at [444]. 7 Ibid. 8 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liquidation) (2019) 99 NSWLR 317 at [12], applying Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 346 and 350–351 and Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85 at [46] and [103]. 9 Seymour at [13], citing Kiefel J (with whom French CJ agreed in this respect) in Simic at [41]. 10 Ibid. 11 Ibid; see also Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [459]-[460]. 12 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at 713-14 [459]-[460]. -- 16 of 19 -- 17 [85] In this case, there was no common intention of the parties to proceed with a contract of $1,355,000. [86] The Becks were not mistaken when executing the contract.13 They read the contract and agreed to its terms. Estoppel [87] The Kucks, further or alternatively, submit that the Becks are estopped from asserting the Contract purchase price by an established convention that the price was $1,355,000 or on an assumption by the Kucks, which was acquiesced in by the Becks. [88] The doctrine of estoppel by convention arises where parties conduct their relations on the basis of an agreed or assumed state of facts, which both will be estopped from denying.14 [89] An equitable estoppel arises upon an assumed legal relationship that a contract will come into existence or a promise be performed, where a party has induced the other to adopt that assumption or expectation, and where the other party has relied on the assumption to their detriment.15 [90] Here, the Kucks submit that the relevant purchase price of $1,355,000 was explicitly discussed and agreed upon before execution. [91] However, I do not accept this to be the state of the evidence. I accept Mrs Beck’s evidence that she proceeded on the basis that: (a) her latest offer was $1,355,000, including furniture and early access; (b) this was rejected when she was then provided a contract of $1,210,000; and (c) the $1,210,000 purchase price reflected her previous offer which was still on the table. Misleading or deceptive conduct [92] Section 18(1) of the ACL provides that: “A person must not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” [93] There is a question of whether a sale of a residential home between private parties is engaging “in trade or commerce” within the meaning of the ACL,16 as discussed in Williams v Pisano [2015] NSWCA 177 at [38] (references omitted): 13 Third Mrs Beck Affidavit at [23]-[28] (Court Book p 498); Second Mr Beck Affidavit at [5]-[9] (Court Book p 508); Second Mrs Beck Affidavit at [41]-[42] (Court Book pp 178-179); First Mr Beck Affidavit at [24]-[25] (Court Book p 169). 14 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 266 at 244. 15 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 610. 16 Argy v Blunts & Lane Cove Real Estate Pty Ltd (1990) 94 ALR 719 at 734-737, applying O’Brien v Smolonogov (1983) 53 ALR 107. -- 17 of 19 -- 18 “In ordinary circumstances, a person who sells his home, whether by private treaty or by auction and whether he conducts the negotiations personally or through a real estate agent, would not be said to be undertaking those activities in the course of a trade or business or in a business context. Whether or not an estate agent is used and whether or not that agent advertises the house, by preparing brochures or other advertisements, and whether or not the agent sells by auction or merely negotiates a private treaty, the sale will normally remain a sale by the vendor of his house and not an act done in a business context. It is relevant to consider the character of the parties involved, which includes whether they are people who have engaged in or are about to engage in commercial activities, whether the transaction is motivated by business, as distinct from personal, reasons and whether the person whose conduct is under attack played an active part in the transaction. The mere use of an estate agent does not bring about the result that the sale of a capital asset by a householder is a transaction occurring in trade or commerce.” [94] In this case, even if it is accepted that the conduct in question was in trade and commerce, there is no basis for a claim of misleading or deceptive conduct. [95] This relief proceeds on the basis that the Becks represented they would enter a contract to purchase the property for $1,355,000 and, at the time of execution, they were silent that the $1,210,000 purchase price did not reflect their earlier disclosed representation or agreement. The Kucks state that the Becks’ conduct was misleading or deceptive where either: (a) the Becks made a positive representation as to future conduct that they would enter into a contract to purchase the property for $1,355,000; or (b) the Becks had, by silence in not drawing the $1,210,000 error to the Kucks’ attention, represented that the contract accurately reflected their previous agreement or representation ($1,355,000). [96] My findings of fact do not support such a claim. [97] Accordingly, there is no basis to grant the relief claimed by the Kucks pursuant to the ACL. Specific performance [98] The Becks seek specific performance of the contract. [99] To obtain specific performance of a contract, a plaintiff must ordinarily show that they are ready and willing to perform their part of the bargain.17 [100] Specific performance will be granted where the defendants have refused to complete, and the contract is capable of being performed, unless the exercise of the discretion would perpetuate an injustice.18 17 Le v Bui [2008] QSC 149 at [20]. 18 Storey v Britton [No 2] [2025] QSC 151 at [70]. -- 18 of 19 -- 19 [101] I am satisfied that the circumstances of this case support granting specific performance in the Becks’ favour. [102] In this case, there is evidence that the Becks were ready, willing and able to perform their part of the bargain. [103] There was, and is, no basis for the Kucks to refuse to complete the contract and the contract is capable of being performed. [104] Accordingly, the order of the court is that the Kucks specifically perform the contract. [105] The Becks also seek the cost of renting alternative accommodation from 3 December 2025. In my view, these damages are appropriate in the circumstances. [106] I note that the Kucks concede that: (a) The rent payable was and is $814.73 per week; (b) The date on which the rent to be paid should cease is the end of the General Tenancy Agreement on 31 March 2026; and (c) It would be appropriate for the Court to find that the appropriate damage should be assessed at a weekly rate of $814.73 per week until 31 March 2026 [107] In my view, such a concession is appropriate in the circumstances. [108] The parties are to provide me with a form of order consistent with these reasons by Thursday, 26 March 2026. [109] As to costs, the Becks have been wholly successful. [110] Costs ordinarily follow the event. [111] I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on an order for costs. [112] If this cannot occur, the parties should, within 7 days, file and serve written submissions as to costs. [113] If it is appropriate, I will then deal with the question of costs on the papers, unless either party requests a hearing. To facilitate that process, I will adjourn the question of costs to a date to be fixed. -- 19 of 19 --