Judicial creativity will always have both its proponents and its detractors. But judicial clarity would surely be universally welcomed. Set against that standard, the High Court has frequently disappointed, by confusing rather than clarifying, negating rather than affirming. Take, for instance,..the unnecessary questioning of the well established presumptions as to intention to create legal relations.
Andrew Stewart, ‘what is wrong with Australian law of contracts?'(2012) 29 Journal of Contract LAW 74,81.
Ms Ashton contended that the primary judge erred in applying the presumption [not to create legal relations].it is correct that his honour accepted the presumption applied…Ashton v Pratt[2015] NSWCA 12 916 February 20150 [72].
Question:
Considering the above quotes, has the High Court’s statement in Ermogenous on the use of presumptions in the determination of the intention to create legal relations been correctly understood and implemented by lower Courts in Australia? Was the High Court correct in re-characterising the role of presumptions?
In your answer, you must:
1.identify and discuss the ratio of the high court’s decision in Ermogenous;
2.research and examine the subsequent judicial and academic treatment of the case, including Ashton;
3.state and explain your own opinion in response to question.