A court should not determine the construction of a contract on an 'as if' final basis on an interlocutory injunction application where there is material contested evidence relevant to the factual matrix that has not been tested by cross-examination. Evidence of what was not discussed in pre-contractual negotiations is direct evidence relevant to construction and cannot be dismissed as mere subjective opinion. On the balance of convenience in performance security cases, reputational harm from a call on bank guarantees is entitled to little weight where the applicant can avoid it by paying the disputed amount, and the contractual risk allocation regime requiring payment pending dispute resolution represents the relevant status quo.
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