Lord Russell of Killowen (delivering the judgment of the Board):

This appeal raises two questions. Firstly: whether the Federal Court was right to reverse the decision of Gill J that the evidence disclosed a case of sufficient cogency to justify the equitable remedy of rectification of a contract for the sale of land on the ground of mistake common to vendor and purchaser, in including one among seven lots of land in an agreement for sale. Secondly: whether, if the Federal Court was not so justified, rectification (or its equivalent) could be ordered notwithstanding the subsequent transfer of the one lot to the purchaser and his registration as proprietor thereof, under the applicable Torrens system, and the provision of the applicable law that his title was "indefeasible."

Oh Hiam (plaintiff No. 1) was the widow of Teo Teow Guan who died in 1943. She took out letters of administration to his estate. They had five sons and three daughters, (plaintiffs 2 to 9 inclusive). Included in the estate of the deceased were six plots of rubber growing land, forming one area ("the Gombak land"), in the Mukim of Setapak, Kuala Lumpur, totalling nearly 34 acres. Also included in the estate (inter alia) was a plot, in the village of Setapak, some miles from the first group, in area 1 rood 36 perches (just under 1/2 acre): this was Lot 3660.

On 30 September 1956 the vendor, as administratrix of the deceased, entered into a written agreement with the defendant Tham Kong to sell to him 7 lots, including the third Lot 3660, at a price of $450 per acre. Subsequently on 1

August 1957 an originating summons was issued by Oh Hiam. She applied for leave to carry out that sale, which leave was required because she was administratrix and was provided for in the sale contract. Parties to the originating summons were her eight children. Leave to sell was given by order on 23 September 1957: the children (though parties) took no part in those proceedings. The agreement was completed by four transfers which were registered on 20 January 1958. The transfers of Lot 3660 and Lot 1537, in total about 8 1/2 acres, were registered in the name of the defendant Tham Kong: the other three transfers were to and registered in the respective names of the defendant's wife (some 8 and 3/4 acres), his half brother-in-law (some 9 and 3/4 acres) and his mother-in-law (some 7 1/2 acres).

Some months later in 1958 it was discovered by Oh Hiam and her family that an attempt was being made on the defendant's behalf to collect rents from tenants of the residential building on Lot 3660. There was evidence that the building housed some 30 to 40 people including tenants and their families, and that a daughter (plaintiff 7) and her small children lived there. The house was known as No. 99 Klang Gates Road. As a consequence Oh Hiam started proceedings based on the contention that Lot 3660 was not intended to be included in the agreement or transfers and was included by mistake. Rectification was sought and a retransfer of Lot 3660 against repayment of its purchase price at $450 per acre.

Oh Hiam died on 24 August 1958 before the action came on for hearing and a grant was made de bonis non to two of the children in her place (plaintiff 2 and plaintiff 7). The action proceeded at a leisurely pace, no doubt in part due to the death of Oh Hiam, and was heard by Gill J starting in June 1965 and finishing with his reserved judgment in favour of the plaintiffs in August 1966. The defendant appealed to the Federal Court which unanimously reversed the decision of Gill J and dismissed the action. This was in September 1967. Application was made for leave to appeal to His Majesty the Yang di-Pertuan Agong, and the application was adjourned sine die in May 1968, apparently in connection with a bankruptcy of the defendant from which he was later discharged, and final leave to appeal was not given until March 1978, which gives some explanation why the matter comes before this Board