CLUNY & SKINNER

In the matter of *Cluny & Skinner*, Kent J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and its impact on the rights of the parties to that deed. The core of the disagreement revolved around whether a subsequent agreement, also entered into by the parties, superseded or modified the terms of the original deed.

The primary legal issue before the Court was to determine the operative effect of the deed of settlement in light of the later agreement. Specifically, the Court had to ascertain whether the parties intended the subsequent agreement to extinguish or vary their obligations and entitlements as established by the deed of settlement, or if the deed remained in full force and effect notwithstanding the later contractual arrangement.

Kent J's reasoning focused on the principles of contractual interpretation, particularly the approach to construing documents that appear to address the same subject matter. The Court examined the language used in both the deed of settlement and the subsequent agreement, considering the surrounding circumstances and the conduct of the parties. The fundamental principle applied was that a later agreement will only displace an earlier one if it is clear that the parties intended to do so, either expressly or by necessary implication. In this instance, the Court found that the subsequent agreement did not contain terms that were so inconsistent with the deed of settlement as to infer an intention to abrogate it entirely, nor did it expressly state that it was intended to replace the deed.

Consequently, the Court held that the deed of settlement remained binding on the parties and that its terms continued to govern their respective rights and obligations.