The Case Of Codelfa Construction Pty Ltd V. State Rail Authority Of N.s

874 Words Jan 5th, 2015 4 Pages
There has also been an increasing recognition in case law, even among strong proponents of the traditional principle of objectivity, that the rigid nature of the exclusionary rule can restrict fair adjudication. A notable example is found in the Australian case of Codelfa Construction Pty Ltd v. State Rail Authority of N.S.W., where Mason J, known to be a strong proponent of the orthodox objective approach was inclined to acknowledge that “there may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention”. He further reasons that:
“After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable persons in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances.”

Another example can be found in the case, also Australian, of Spunwill Pty Ltd v. BAB Pty Ltd in which it was found that there is no real justification for excluding evidence of mutual intent simply because such evidence falls under ‘pre-contractual negotiations’. In his judgment, Santow J. said:
“Though the relevance of…
Open Document