For our part, we doubt the utility of using the language of presumptions in this
context.
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 106
(Gaudron, McHugh, Hayne and Callinan JJ).
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’s Wrong with the Australian Law of Contract?’ (2012)
29 Journal of Contract Law 74, 81 (citations omitted).
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 (16 February 2015) [72].

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:
– identify and discuss the ratio of the High Court’s decision in Ermogenous;
– research and examine the subsequent judicial and academic treatment of the case,
including Ashton;
– state and explain your own opinion in response to the question.