STATE LOTTERIES OFFICE v BURGIN

Court of Appeal (NSW)|1993-04-23|Before: Kirby P, Sheller JA, Meagher JA

For the reasons given by the President I do not consider that the ticket was rendered void and no prize was payable because of Reg12 of the State Lotteries (Instant Lotteries) Reg1983. I also agree for the reasons given by the President that the cross appeal should be allowed with costs. In my opinion the orders of the Court should be as proposed by the President.

(By majority)

Appeal dismissed with costs;
Cross appeal allowed with costs; and
Set aside the judgment entered by Nash DCJ in favour of the respondent (plaintiff) in the sum of $26,000 and substitute judgment in the sum of $29,000. The costs order at the trial is confirmed.

CONTRACTS - interpretation - ambiguity - uncertainty - proper approach to construction of - Scammell v Ouston [1941] AC 251 (HL); Schuler (L) AG v Wickman Machine Tool Sales Ltd [1974] AC 235 (HL) and Whishaw v Stephens [1970] AC 508 (HL) considered. WORDS and PHRASES - "match".

Ambiguity is not the same as difficulty of construction. See Schuler (L) AG v Wickman Machine Tool Sales Ltd [1974] AC 235 (HL), 261. Conventionally, the law has classified ambiguity into two types: the patent and the latent. A patent ambiguity appears plainly from nothing more than the words of the instrument under consideration. Those words may be self-contradictory or irreconcilable. As a last resort, in such cases, a court will conclude that the parties had not reached agreement at all. It will declare the supposed contract void for uncertainty. See Scammell (G) and Nephew, Ltd v Ouston [1941] AC 251 (HL), 261. A latent ambiguity arises where evidence of the circumstances surrounding the making of the instrument is essential to clarify the words used which are otherwise obscure; and

All of the foregoing are but guidelines for ascertaining the intention which the law will impute to the parties. In Whishaw v Stephens (sub nom In re Gulbenkian's Settlement) [1970] AC 508 (HL) at 522, Lord Upjohn said: "There is no doubt that the first task is to try to ascertain the settlor's intention, so to speak, without regard to the consequences, and then, having construed the document, apply the test. The court, whose task it is to discover that intention, starts by applying the usual canons of construction; words must be given their usual meaning, the clause should be read literally and in accordance with the

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