(Supreme Court of New South Wales – Court of Appeal) The court considered a transaction with two parts, one of which (for the transfer of certain Equity Swaps) was wholly in writing; and the other part of which (a hedge involving the acquisition of certain shares and the assumption of certain margin obligations) was not in writing, and there was no evidence of any conversation which might have established the terms: the second part of the transaction was sought to be inferred from conduct alone.
Held: The Court emphasised that (a) the surrounding circumstances to which the court’s attention was invited had regard only to that part of the transaction that was not in writing and (b) ‘The issue is not one of interpretation, because there are no words to interpret. The issue is one of fact: what terms did the parties agree?’
Chief Justice Spigelman said: ‘Even in the case of a written contract, the words identifying the subject matter being bought and sold may be susceptible to more than one meaning. This is one well established category of ambiguity, so that extrinsic evidence is admissible to identify the subject matter, even on a restrictive approach to the use of extrinsic evidence in the course of contractual interpretation.’
Judges:
Spigelman CJ Beazley JA McColl JA
Citations:
2008] NSWCA 193
Links:
Jurisdiction:
Australia
Cited by:
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 13 September 2022; Ref: scu.645465