Contractual issue

Cherry v Steele-Park [2017] NSWCA 295

In 2011, the High Court sternly told all courts to follow the old rule12 – but not many bowed.  In Cherry (at [68-85]), Leeming JA explains (A) why surrounding circumstances have to be consulted before any finding of ambiguity can be made, and (B) why the High Court must be taken to agree13.  Why is this controversial and why does it matter? 

[1] the 2011 case entrenches an anomaly, [2] recent High Court statements are less than clear, [3] state courts are inconsistent on the issue14, [4] commercial disputes invariably raise the point, and [5] academic criticism of the present situation persists.  This is an issue which needs to be settled once and for all.

This case is from Episode 32 of interpretationNOW!


12 Jireh [2011] HCA 45.

13 Tatts Group [2016] HCA 5 (at [51]), Simic[2016] HCA 47 (at [78]).

14 Cherry (at [78]), cf Technomin [2014] WASCA 164 (at [35-45]).