Lloyd's Maritime and Commercial Law Quarterly
DELETIONS AND INTERPRETATION—A POSTSCRIPT
NZI Capital v. Child
In a previous Comment1 attention was drawn to two recent cases, one English,2 one Australian,3 which ran contrary to what has sometimes been said to be the prevailing modern view that deleted provisions should not be used in interpretation.4 Some older authorities appeared to suggest that, if deletions were to be used, this should only be when they appeared in printed standard forms. In Centrepoint Custodians v. Lidgerwood,5 Ormiston, J., speculated as to what might be the proper rule for word processors and approved the opinion of Mason, J., in Codelfa Construction Pty. Ltd. v. State Rail Authority of N.S. W.6 that account should be taken of the deletion of a clause which would otherwise have been implied, since it was not proper to carry interpretation to the point of imposing on parties terms they had united in rejecting. In Punjab National Bank v. De Boinville,7 Staughton, L.J., framed a general formula indicating when he thought deletions might be used, which rejected any restriction to printed forms,8 and which would therefore appear to cover materials in a word processor. He further thought that the authorities permitted not only the content of deleted terms but also the fact of deletion to be employed.9
These points arose in a recent New South Wales case, NZI Capital Corp. Pty. Ltd. v. Child,10 though neither of the other two recent cases were cited or considered. NZI v. Child involved a complex tax avoidance scheme in which loans were not to be repaid by the borrowers but recovered from the proceeds of insurance bonds. Rogers, C.J., remarked that important discussions had taken place at lunch, not an atmosphere conducive to “precision of language”, and that there was considerable conflict of evidence. The relevant documents had been produced from a precedent stored in a word processor for other transactions and a term obliging a borrower to repay the loan, a term which otherwise would have been implied, had been deleted, it was not clear by whom.11
Rogers, C.J., cited12 the now familiar comment of the then Diplock, J., that this was a topic on which there was “a pleasant diversity” of authority.13 As earlier
1. [1992] LMCLQ 11.
2. Punjab National Bank v. De Boinville [1992] 1 Lloyd’s Rep. 7.
3. Centrepoint Custodians Pty. Ltd. v. Lidgerwood Investments Pty. Ltd. [1990] V.R. 411.
4. See Scrutton on Charterparties, 19th edn. (1984) 21; Ben Shipping Co. (Pte.) Ltd. v. An Bord Bainne (The C. Joyce) [1986] 2 Lloyd’s Rep. 285, 291, per Bingham. J.
5. Supra, fn. 3, at p. 423.
6. (1982) 149 C.L.R. 377, 352–353.
7. Supra, fn. 2.
8. Ibid.,33.
9. Ibid.,32–33.
10. [1991] 23 N.S.W.L.R. 481.
11. Ibid., 486, 489.
12. Ibid., 490.
13. Louis Dreyfus et Cie v. Parnaso Cie Naviera S.A. [1959] 1 Q.B. 498, 513. Rogers, C.J., attributed some of the confusion to failure to distinguish between deletions from an ad hoc document, which should not be admissible, and deletions from a precedent.
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