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Snapshot

  • At present, the weight of recent authority in the NSW Court of Appeal (and the Full Federal Court) suggests that ambiguity is not necessary before the court can consider the surrounding circumstances.
  • Given the conflict between intermediate appellate courts, High Court intervention is likely to be required.

When construing a contract, is ambiguity necessary before the court can consider the surrounding circumstances?

This question might seem straight forward, yet it is not easy to answer.

At present, the weight of recent authority in the NSW Court of Appeal (and the Full Federal Court) suggests that ambiguity is not necessary before the court can consider the surrounding circumstances.

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