|Book||The Interpretation of Contracts in Australia||25/10/2011||9780455228686||$341.00||Add to cart|
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The Interpretation of Contracts in Australia provides practitioners with essential guidance on the construction and interpretation of contracts, including in difficult matters of disputed interpretation.
This adaptation of the widely acclaimed English title The Interpretation of Contracts by Sir Kim Lewison has been long awaited. Former Chief Justice Spigelman of the Supreme Court of NSW writes in the Foreword to this work:
“Some years ago I indicated … an Australian version would be very welcome. I am very pleased David Hughes has undertaken the task to assist Sir Kim to produce an Australian edition … I have no doubt it will make a significant contribution to both the drafting and the application of contracts in the Australian legal system.”
Now barrister David Hughes and Sir Kim Lewison have thoroughly revised the English text to reflect Australian law, while retaining the structure and principles of interpretation of the first nine chapters of the English edition.
These principles of construction and interpretation are discussed in chapters which proceed through the key rules governing each of them. Extracts and summaries of decisions are provided to illustrate the application of those rules. The text’s insights will inform the process of drafting or revising a contract by identifying key principles and discussing them comprehensively, yet concisely, with reference to case law.
By enabling lawyers to construct arguments rooted in the case law, this new Australian work will help lawyers better challenge contracts and explain their inadequacies.
The Interpretation of Contracts in Australia provides an indispensable resource on contracts and is certain to become a leading work in its field.
- Principles of construction and interpretation are discussed in chapters which proceed through the key rules governing each of them.
- Extracts of decisions are provided to illustrate the application of those rules.
- By enabling lawyers to construct arguments rooted in the case law, it helps them to challenge contracts and explain their inadequacies.
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From: (2012) 86 ALJ 563 - Vol 86 No.8 2012
Reviewed by Acting Justice Peter W Young
Lewison’s Interpretation of Contracts , first published in 1989 and now in its fourth edition in England has a well deserved reputation as the leading text on the subject. The first and second English editions were reviewed in this Journal respectively by Ross Sundberg in "Book Reviews" (1990) 64 ALJ 442 and David Maclean in "New Books" (1999) 73 ALJ 219.
The rules as to interpretation of contracts in Australia differ considerably from the English rules. Moreover, the High Court has made it clear that local courts are not at liberty to depart from the principles laid down by it in Codelfa v State Rail Authority (NSW) (1982) 149 CLR 337 [PDF].
With the active co-operation of Lord Justice Lewison, David Hughes (formerly the researcher for the Chief Justice of New South Wales, now at the New South Wales Bar), the best of the English book which is apposite to Australia has been retained, but has been intertwined with the decisions of the High Court and Australian superior courts to produce a work that can be used with safety by Australian lawyers.
The Australian book only takes up Chs 1 to 9 of the English book. This takes up 33% more pages than the corresponding chapters of the English book and probably meant that the balance had to be put aside for reasons of space. It was a pity that Ch 10 of the English work on the preliminary parts of a deed was not included as there is little by way of modern texts on this subject matter. Ross Sundberg noted the value of the chapter on deeds in his review of the first edition.
I was also a little sad that that great quote said to be derived from Fred Householder, Linguistic Speculations , was omitted from the Australian edition: "Nothing can be so clearly expressed that it cannot be utterly misinterpreted."
When one compares the first two chapters of the English and the Australian books, one can see the considerable differences in approach of the courts in the two nations. The Australian edition has to cast its net far more widely that exegesis of the speeches of Lord Hoffmann.
Although the Australian work follows the basic structure of the English book and there are many direct transcriptions from it, sometimes, a section is almost completely rewritten.
Thus, the Australian section 4.09 is headed: "The Court will not usually be greatly assisted by the citation of authority on the construction of a one-off contract". Then follows a page and a half of quotes from Australian judges followed by a quote from Jessel MR in Aspden v Sneddon (1874) LR 120 Ch App 394 at 396n.
The English 4.09 is headed: "The court discourages the citation of authority on the construction of a one-off contract, and will not usually be greatly assisted by it". Then follows a page and a half of English authority, followed by the same material focused on Jessel MR’s reasons in Aspden v Sneddon .
Australian lawyers are grateful to Mr Hughes for his efforts in turning an already useful work into the Australian standard.
Table of Contents
Chapter 2 – The Purpose of Interpretation
Chapter 3 - The Materials Available
Chapter 4 – Law and Precedent
Chapter 5 – The Meaning of Words
Chapter 6 – Implied Terms
Chapter 7 – The Canons of Construction
Chapter 8 – Ambiguity and Uncertainty
Chapter 9 – Mistakes and Inconsistencies