Example Clause
Interpretation
In this deed (unless the context otherwise requires):
- references to parts, clauses, schedules, exhibits and annexures refer to them of, in and to this deed;
- a reference to this deed includes all schedules, exhibits and annexures to this deed;
- a reference to including, includes or include must be read as if it is followed by (without limitation);
- a reference to a court is to an Australian court;
- a reference to a party is to a party to this deed;
- where an expression is defined, any other part of speech or grammatical form of that expression has a corresponding meaning;
- the singular includes the plural and vice-versa;
- a reference to an agreement, deed, instrument or other document (including, without limitation, references to this deed) includes the same as varied, amended, novated or supplemented from time to time;
- a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinated legislation issued under, that legislation or legislative provision;
- headings do not affect the interpretation of this deed;
- a reference to any party includes that party’s executors, administrators, substitutes, successors and permitted assigns;
- a reference to $, AUD or dollar is to the lawful currency of the Commonwealth of Australia; and
- figured dimensions take precedence over any diagram or plan.
Dangerous of Assume such Wording is ‘Standard’
It goes without saying that such clauses can have a more significant application than an initial glance through the concepts might appreciate. Such clauses are often ‘copy / pasted’ into new documents without much thought. Each of the concepts listed above is really a topic in its own right.
Headings for Convenience
The use of the phrase above ‘headings do not affect interpretation’, or similar wording often titled ‘headings for convenience’ is discussed on a separate page – click here.
Figured Dimensions Take Precedence
See our page on Quantities, Diagrams and Figures for more detail on how units of measurement apply.
Successor and Assigns
In relation to the “successors and permitted assigns”, note that Nashco Pty Ltd v Yang [2022] NSWCA 137 dealt with a situation where a contract of guarantee was executed by the directors of a purchaser in favour of a partnership “and its successors and assigns”. The partnership, which supplied items to the purchaser, was subsequently incorporated two years later and assigned its entire business to the company. The purchaser continued to trade without updating the terms of the relevant agreements. The New South Wales Court of Appeal held that the guarantee was binding to secure the debts owed to the assignee company. In the interpretative clause above such an outcome could be different due to the words “permitted”, though of course a further clause would be recommended to clarify the relevant permission required.
Includes and Including
The potential confusion in relation to the meaning of the word “includes” can be demonstrated with a hypothetical definition as follows:
“Colour” includes yellow, blue, black and green.
Two questions arise from those words. The first is whether the definition is exclusive, so that other colours such as red or purple are excluded. The second is whether the meaning of the original term is extended, as by some definitions black is not a colour (being better described as a shade which augments colour).[1]
In the context of a statute, where ‘includes’ is used rather than ‘means’ in a definition, it will not ordinarily be intended to be exhaustive but rather will be intended to enlarge the ordinary meaning of the previous words.[2] However, the question is one of construction and it was been held that use of ‘includes’ can be intended to be exhaustive.[3] The cases on statutory construction have, in this respect, been very influential in the construction of contracts as well.[4]
There are alternative forms of words which can be used to avoid such disputes. The words “means and includes” have been held to be exhaustive.[5] Alternatively, if the intention is to create a non-exhaustive list, this can be clarified by using the word “includes, but is not limited to” or similar. Finally, a generic term can be added, such as:
In this Agreement a reference to ‘including’, ‘includes’ or ‘include’ must be read as if followed by ‘(without limitation)’.
The principle ejusdem generis applies: one word in a list of expressions should not be given a meaning so broad as to be inconsistent with adjoining words or render those other words irrelevant: Lend Lease Real Estate Investments Ltd v GPT Re Ltd [2006] NSWCA 207 at [32].
Publication date: 5 January 2024. If referencing this page, please see our citation guide.
[1] See generally, Hogebeck, J., “Are Black and White Colors”, as published on 23 January 2023, Britannica, https://www.britannica.com/story/are-black-and-white-colors.
[2] Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327 at [106]; Transport Accident Commission v Hogan [2013] VSCA 335 at [47]; Dilworth v Commissioner of Stamps [1899] AC 99, 105.
[3] YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395, per Kitto J at [6]; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [38]- [43].
[4] Urica Library System BV v Sanderson and Computers Pty Ltd [1997] NSWCA 326 per Sheller JA.
[5] Hepples v Federal Commissioner of Taxation (1990) 22 FCR 1 at per Gummow J at 21;.