By Talitha Fishburn -
Snapshot
- While Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 is a widely cited Australian case, its application is far from obvious.
- Recently, the controversy, often termed ‘the ambiguity gateway’, has focussed on the question of whether ambiguity in the contract is required as a precondition to admit evidence of ‘surrounding circumstances’.
- Having regard to the differences between the States as well as the differing approaches in the High Court jurisprudence over the last two decades, it is hoped that the position will soon be clarified by the High Court.
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 (‘Codelfa’) is a widely cited Australian case. Despite it being a household name for lawyers, the breadth of its application is far from obvious. For several decades, the precise ambit of Codelfa has been, ironically, the subject of its own ambiguity. Central to this ambiguity is the vexed question of ‘surrounding circumstances’. Namely, when can a party rely on evidence of ‘surrounding circumstances’ as an aid to construing a contract? Recently, the controversy, often termed ‘the ambiguity gateway’, has focussed on the question of whether ‘ambiguity’ in the contract is required as a precondition to admit evidence of ‘surrounding circumstances’. Despite the regularity of disputes about contractual construction, the principles of contractual construction remain somewhat unclear. So, where is Codelfa in the new age? And is ambiguity the password at the gates or not?
