The book serves as a useful reference for both drafting and litigating commercial contracts. Through providing a succinct of the evolution of contractual construction over time, before outlining the general principles of contractual construction, the authors have provided a good first port of call for understanding how to approach construction.

Samuel Skinner, Queensland Lawyer, Vol 40 (2024)

The Construction and Performance of Commercial Contractsprovides readers with a comprehensive understanding of contract construction in a commercial context as it applies to business arrangements between a vast range of parties from multi-national companies to individual consumers. This excellent new edition addresses the law that is generally stated as of 1 May 2023, analysing both seminal and recent decisions in the area in a clear, succinct and easily digestible way. It provides both practical guidance on general issues of construction and a detailed analysis of specific clauses about which issues are frequently encountered in negotiating commercial contracts and disputes about them.

Among other updates, this third edition: comprehensively addresses legislative amendments to the Australian Consumer Law in the area of unfair terms; introduces a new section to the chapter on Entire Agreement Clauses exploring the reception of No Oral Modification clauses into Australian Law; expands coverage of force majeure and indemnity clauses; updates the Governing Law and Jurisdiction chapter; and updates the Notices chapters to consider recent case law developments, including the evolving use of electronic communication methods prevalent in today’s digital age.

As with previous editions, The Construction and Performance of Commercial Contracts is recommended to those studying, drafting, implementing or enforcing commercial contracts in Australia.

H Lilley of Counsel, Queensland Law Reporter – 11 August 2023

Reviews of previous editions

It is a comprehensive yet highly readable work with clear referencing suitable for any practitioner (or student). The authors have achieved their objective of providing a clear analysis of a broad range of common clauses (in various forms). It has a visible place on my bookshelf, readily available for regular use.

A considerable amount of the work of commercial courts these days is occupied by construing contracts made between business people. Part of the reason for this is that many business people give what they contemptuously call “the paper work” very low priority and assume that all parties to a transaction will share the same view of the transaction as themselves. The work of the courts is not made easier by the problem that our High Court and the English commercial courts have adopted significantly different approaches to the construction of commercial contracts.
        This book aims to assist with these problems. However, it does so in a different way to the approach taken by Lewison and Hughes in their seminal text, The Interpretation of Contracts in Australia (Lawbook Co, 2012). Only one chapter of the present book focuses on how the basic approach to the construction of commercial contracts differs from the approach to “ordinary” contracts. However, that treatment is a good summary of the current position, though it lacks the depth that the citation of a wider selection of utterances from the authorities would have given it.
        Apart from the introductory chapter, the other chapters deal with particular aspects of commercial contracts. Thus, Ch 6 deals with entire agreement clauses in 16 pages, Ch 9 deals with contingent conditions in 20 pages and Ch 10, with time provisions in 26 pages. Other chapters are “Notice Provisions”, “Novation”, “Nomination”, “Guarantees”, “Indemnities”, and “Dispute Resolution Clauses”. In each of these chapters, particular problems of construction are addressed, including how the courts have approached standard clauses such as “subject to finance”.
        It is good that the authors have taken a different approach to the subject as their book is not a duplication of existing texts, but rather is a useful complementary work to them.

This is an excellent reference book for all lawyers who work in the drafting of contracts or in relation to contractual disputes.
        The practical experience of the authors’ is evident in the way the book is written. The content is structured in a very logical way. … The book is useful for any practitioner. It is in plain English. It gives very practical advice.
        This book will live in the shelf next to my desk as a reference in relation to the construction of all contracts that I need to draft or consider. It is very clear, precise and useful.

This excellent new work provides substantial practical guidance for both general issues of construction of contracts but more particularly, to issues that arise in relation to the construction of specific clauses frequently encountered in commercial contracts. The Construction and Performance of Commercial Contracts is recommended to all those involved in drafting, implementing and enforcing commercial contracts in Australia.