Introduction

Every year, the Allens contract law update contains many cases where judges reach different conclusions on the same evidence and (often) applying the same legal principles. This uncertainty in outcomes is one of the few certainties of contract law. 

Few areas better illustrate this uncertainty than the willingness or otherwise of courts to stretch contractual language to adopt a more commercial interpretation. In 2023, we again saw different approaches to this fundamental issue. As it is usually a question of degree whether a commercial interpretation is open on the language used by the parties (and what is in fact a commercial outcome), one can rarely say that an outcome is right or wrong; the uncertainty is just a reflection of the (necessary) flexibility of the common law.

The flexibility of the common law also means that there is usually quite a close alignment between legal principles and commercial morality. Willis v AMP, discussed later in this update, might however strike some readers as a case where the principles of contract law lead to an outcome that is contrary to commercial morality. If it is such an example, a challenge is then to determine how the common law might develop to avoid such outcomes (without creating new areas of potential injustice).

This constant evolution of legal principle to accord with our (changing) commercial morality is one of the great strengths of the common law, and this update will continue to monitor that evolution as today's judges address old problems in innovative ways.