Overview
This is the second article in our series (see here for our first article) looking at some of the key risks that commonly arise when buying or selling a property – and how to navigate those risks effectively to ensure both buyer and seller get the result they bargained for.
Picture this: you are days away from settling on a property when the other side’s solicitor spots a problem. The contract names the buyer as “John Smith”, but his driver’s licence (and therefore the transfer) says “John Michael Smith”.
Or the title search shows the seller holds the property “as trustee”, but the contract makes no mention of any trust.
Suddenly you are being told the parties “must match exactly”, and that settlement cannot proceed unless a statutory declaration is produced – or worse, that the contract must be torn up and re-signed altogether.
Much has been written about the importance of getting party names right in a contract of sale, and that advice is sound.
But what actually happens when a name is incomplete, misspelt or missing a capacity? In most cases, the contract survives, rescission is unnecessary, and the party insisting on an exact match is overstating the law.
In this article, we explain why – because understanding the principles is what allows you to hold a confident position when settlement is looming and the pressure is on.
When your dream property is at stake – or you have secured a price you are happy with as a seller and want to get to settlement and move on – you deserve nothing less.
The starting point: identifying a party is a matter of substance
The law distinguishes between a misnomer – the right party wearing the wrong label – and a genuine mistake about who is contracting. A misnomer is resolved by construction, and the question is objective: would a reasonable person, armed with the background knowledge available to the parties, understand who was intended?
Evidence outside the contract is admissible for this purpose, because identifying a party is not the same as contradicting the document. In F Goldsmith (Sicklesmere) Ltd v Baxter [1970] Ch 85, a company contracted to sell land under a name that was not its registered name – and the contract was upheld. The misdescription did not create a phantom party; it simply described a real one imperfectly.
Applied to the missing middle name: “John Smith” and “John Michael Smith” are one and the same person, imperfectly and perfectly described and readily apparent to both buyer and seller. No one could doubt who signed, and the contract binds John in either form.
Nor is the statutory writing requirement offended. A contract for the disposition of land must be in writing and signed by the party to be charged – formerly section 59 of the Property Law Act 1974 (Qld), now section 7 of the Property Law Act 2023 (Qld) (PLA 2023) – but the statute demands certainty of party, not completeness of nomenclature.
Where the doctrine runs out: the Simic litigation
The misnomer doctrine is effective between the actual parties to an ordinary contract. However, it becomes fragile where third parties must rely on the face of a document – as the High Court made clear in the Simic litigation.
NSW Land and Housing Corporation v ANZ [2015] NSWSC 176; Simic v NSW Land and Housing Corporation (2016) 260 CLR 85
A builder arranged for ANZ to issue two performance bonds as security under a construction contract. Due to an error, the bonds named a non-existent beneficiary – the “New South Wales Land & Housing Department” – rather than the NSW Land and Housing Corporation. When the Corporation called on the bonds, ANZ refused to pay. The trial judge and the Court of Appeal solved the problem by construction, but the High Court disagreed: instruments like bank guarantees must be able to be acted on at face value, so the bonds could not be construed in the Corporation’s favour. They could, however, be rectified (i.e. changed to give effect to the parties’ actual common intention) because that intention was clear.
Two lessons follow. First, between contracting parties, construction usually cures a misnomer – the strictness in Simic reflects the special character of autonomous third party instruments (which require strict certainty to support confidence in their use and reliability as a matter of effective commerce, finance and trade), not a retreat from the principle. Secondly, where the name used denotes a real, different entity (the wrong company in a group, for example), you are outside misnomer territory altogether: that is a mistake about identity, and the remedies are rectification or a properly documented variation.
The “invisible trustee”: when the contract does not match the title
Queensland conveyancing has a feature that regularly generates this issue: unlike most other States, a trustee’s capacity actually appears on the register (sections 109 and 110 of the Land Title Act 1994 (Qld) (LTA)). So when a registered owner “as trustee” signs a contract that omits the notation, the mismatch is visible on a title search – and it is sometimes seen as a real problem, with buyers’ solicitors occasionally demanding a deed of rescission on the basis that the contract and title must “match exactly”.
However, such a demand is not legally sound. In particular:
- A trust is not a separate legal entity – rather, a trust is a relationship under which a person holds property for the benefit of others, with no legal personality distinct from its trustee (CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98). The company named in the contract is the seller – “as trustee” describes a capacity, not a different person.
- A trustee who holds property only in that capacity necessarily deals with it in that capacity – as the old Chancery authority of Rooper v Harrison [1855] EngR 523 puts it, a trustee who has nothing of their own must be taken to pass the thing held as trustee. The seller is held to have contracted in the only right it has.
- The contract and the transfer serve different functions – the transfer must describe the transferor exactly as the register does, but that is a registration requirement, cured in the transfer documents, not in the contract. Titles Queensland never sees the contract in a standard transfer.
You can read more about the role of trustees, and recent changes to the law in Queensland, in our earlier alert here.
And the supposedly “safe” fix of rescinding and re-signing is not safe at all. A new contract entered into after 1 August 2025 engages the seller disclosure regime under the PLA 2023 afresh – with a termination right for the buyer if the fresh disclosure is defective – and cancelling and re-signing can raise transfer duty questions that a corrected transfer never would.
The term working quietly in the background: the implied duty to cooperate
Underpinning all of this is a term implied by law into every contract – and, fittingly, it comes from a Queensland case. In Butt v McDonald (1896) 7 QLJ 68, Griffith CJ said that each party agrees, by implication, to do all such things as are necessary on their part to enable the other party to have the benefit of the contract – a formulation approved by the High Court in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596.
The duty cuts both ways. A party cannot weaponise a trivial misdescription to withhold completion – where time is of the essence, that flirts with repudiation. Equally, a party asked to perform a low-cost act genuinely necessary to completion or registration may well be obliged to do it.
So can the other side insist on a statutory declaration?
A statutory declaration under the Oaths Act 1867 (Qld) is quick, cheap and carries criminal consequences for falsity – which is precisely why it gives comfort, and why the Registrar of Titles accepts declarations as evidence on a range of matters. But there is a difference between a declaration being useful and a party being entitled to demand one as a condition of settling. There is rarely any express contractual basis for the demand, and whether the duty to cooperate requires one turns on whether it is genuinely necessary for registration or duty purposes – and on whose risk the discrepancy actually is.
What should not be lost in the argument is proportionality. Time is of the essence in Queensland property contracts, and the courts enforce that strictly (as we explained in our first article in our property series)
A one-page declaration costs 20 minutes; a failed settlement can cost the contract itself.
Which side of the line a particular demand falls on – and how to respond without putting settlement at risk – is exactly where early advice from a lawyer earns its keep.
Why your bank will still ask you to fix it
If names do not have to match exactly, why do lenders so often make correcting them a condition of finance? Because the misnomer principles protect the contracting parties – and do very little for a third party financier. An original mortgagee must take reasonable steps to ensure the mortgagor is the same person who is, or is about to become, the registered proprietor (section 11A(2) of the LTA), and a mortgagee that fails to do so risks losing the benefit of indefeasibility if identity fraud is involved (section 185(1A)). Add the bank’s customer identification obligations under anti-money laundering laws, and the lesson of Simic itself – a bank litigating a beneficiary’s name all the way to the High Court – and a zero-tolerance approach makes commercial sense. The practical upshot cuts both ways: a lender’s requirement cannot be answered with a misnomer argument, but it is also the strongest possible basis for asking the other side to cooperate in a simple correction.
Recommendations
Prevention is better than cure. Before a contract is signed:
- search the title and copy the seller’s name – including any trustee notation – exactly from the register;
- take buyers’ names in full from photo identification; and
- record the ACN or ABN and any trustee capacity for corporate and trustee parties.
If a discrepancy surfaces after signing, the right response depends on which side of the line you fall – misnomer or mistaken identity – and on the registration, seller disclosure and duty consequences of the proposed fix. As this article shows, the key is to get advice early, before positions harden – and certainly before settlement is put at risk.
The K2 difference
At K2 Law, we have a highly experienced team of lawyers who act in a broad range of real estate and commercial property transactions. We know what to look for, what questions to ask, and how to protect your interests in a property sale or purchase so that you can have the confidence, certainty and security from the time of contract to completion and beyond.
If you would like to discuss further how we can help, please get in touch with Matt Kumnick or Peter Kumnick.
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