Lloyd's Maritime and Commercial Law Quarterly
USE OF DELETIONS IN INTERPRETATION
Centrepoint Custodians v. Lidgerwood Investments
Punjab National Bank v. De Boinville
These two recent cases, one from England,1 one from Victoria,2 deal with the extent to which it is permissible to use deletions and deleted terms as aids to interpretation. As the mass of reported cases shows,3 this is a frequently recurring problem on which, as Diplock, J., once said, there is “a pleasant diversity of authority”4 or, as Ormiston, J., put it in the recent Victorian case, most of the authorities “contain relatively little analysis of principle”.5 The special significance of these two cases is that, contrary to what is said in Scrutton on Charterparties to be the preponderance of modern authority,6 they both give approval to the use of deletions and deleted terms as aids to interpretation.
The earlier of the two, Centrepoint Custodians Pty. Ltd. v. Lidgerwood Investments Pty. Ltd.,7 involved a tenants’ liability to pay land tax and contains an extended discussion of the authorities, the issue being raised by the fact that clauses containing definitions had been struck out by a court order obtained by consent some time after an agreement had been executed. Ormiston, J., pointed out that many of the cases dealt with deletions from a standard or common form, such as a charterparty, letter of credit or a building contract.8 He mentioned that the current edition of Scrutton said that the weight of authority was against using deletions but that an earlier edition said that the court might consider them as “surrounding circumstances”; in this reflecting the practice of Scrutton, L.J., himself.9 Though the then editors doubted whether this was good law in 1955,10 it had been cited with approval in a number of English and Australian cases but a clear distinction had been drawn between drafts or terms rejected in negotiations, which were not to be
1. Punjab National Bank v. De Boinville [1991] N.L.J. Rep. 856. (Additional points taken from transcript.)
2. Centrepoint Custodians Pty. Ltd. v. Lidgerwood Investments Pty. Ltd. [1990] V.R. 411.
3. See Scrutton on Charterparties, 19th edn. (1984), p. 21 fnn. 47 and 48 for authorities. Other recent cases are Channel Islands Ferries v. Sealink U.K. Ltd. [1987] 1 Lloyd’s Rep. 559, 577, affd. without reference to this [1988] 1 Lloyd’s Rep. 323; Ben Shipping Co. (Pte.) Ltd. v. An Bord Bainne (The C. Joyce) [1986] 2 Lloyd’s Rep. 285, 291 (both against use) and Mineralimportexport v. Eastern Mediterranean Maritime (The Golden Leader) [1980] 2 Lloyd’s Rep. 573, 575; Jefco Mechanical Services Ltd. v. Lambeth (1983) 24 B.L.R. 1, 8. (both for use). For Australian authorities, see Centrepoint, supra, fn. 2, at pp. 421–422. See also Odgers on Construction of Deeds and Statutes, 5th edn. (1967), 64; Chitty on Contracts, 26th edn. (1989) para. 285; Ivamy (1959) 22 M.L.R. 333; Keating on Building Contracts, 5th edn. (1991) 36; Lewison, Interpretation of Contracts (1989) 21–25.
4. Louis Dreyfus v. Parnaso [1959] 1 Q.B. 498, 513.
5. Supra, fn. 2, at p. 421.
6. Supra, fn. 3, at p. 21.
7. Supra, fn. 2.
8. Supra, fn. 2, at p. 421.
9. 16th edn. (1955), 33–34, esp. 33 fn. 1. For a dictum of Scrutton, L.J., see Akties. Heimdal v. Russian Wood Agency (1933) 46 Ll.L.Rep. 1, 6.
10. McNair, J., and the then A.A. Mocatta, Q.C., supra, fn. 9, at p. 34 fn. 1 at end.
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