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[2012] VSC 114
Supreme Court of Victoria
2012-03-30
ROBSON J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Appeal from Associate Justice - Associate Justice heard application for leave to appeal by a builder from VCAT for determination of preliminary questions in proceeding in the Domestic Building List between Victorian Managed Insurance Authority and the builder - Leave to appeal only available on questions of law - Associate Justice granted leave to appeal on some questions and refused leave to appeal on other questions - Hearing de novo - Builders indemnity insurance under House Contracts Guarantee Act 1987 - Policy issued by FAI to builder - Whether insurance of builder under policy complied with the 1998 or 1996 Ministerial Order - Under 1996 Ministerial Order the Builder was the insured - Under 1998 Ministerial Order the building owner was insured - Held VCAT had not erred in law in deciding issued policy complied with 1998 Ministerial Order and the building owner was insured - Appeal dismissed - Application for leave to appeal dismissed.
ADMINISTRATIVE LAW - appeal on question of law from decision of VCAT - whether conclusion of the Tribunal was reasonably open to it on the facts and the evidence - no error of law.
INSURANCE - Whether on proper construction of insurance policy issued by FAI under 1998 Ministerial Order, FAI, and thus, the Victorian Managed Insurance Authority, had power to direct builder to rectify building defects - Held VCAT had erred in law in construing policy finding that FAI and thus Victorian Managed Insurance Authority had such power - Appeal allowed in part - Proceeding referred back to VCAT.
INSURANCE - Subrogation - Construction of policy - Whether policy gave power to insurer to direct builder to rectify defects in building.
1 The defendant, The Victorian Managed Insurance Authority (VMIA), has taken proceedings against the plaintiff, Dura (Australia) Constructions Pty Ltd (Dura), in the Victorian Civil and Administrative Tribunal (VCAT) in the Domestic Building List.
2 VMIA claims that it is entitled to order and direct that Dura, a builder, rectify certain alleged defects in an apartment building that Dura constructed at 346-350 Toorak Road, South Yarra, known as 'Cromwell on Toorak', under a contract with Cromwell Developments Pty Ltd dated 22 May 1998. Dura carried out the construction in approximately 1998 to 2000. Dura denies that VMIA has the power to order it to rectify the alleged defects.
3 VMIA is a statutory body carrying out functions and exercising powers under the Domestic Building HIH Indemnity Scheme, established after the collapse of the HIH Group. VMIA has the statutory power to order that Dura carry out rectification if Dura's insurer, FAI General Insurance Company Ltd (FAI), had those powers under the policy of insurance that covered the building of Cromwell on Toorak. FAI was part of the HIH Group that went into liquidation in 1999.
4 On 17 April 1997, Dura obtained insurance cover from FAI. VMIA contends that from 17 May 1999 Dura was covered by a new policy issued by FAI to comply with a new scheme designed to treat the building owner as the insured. Dura denies it was covered by the new policy and contends that the insurance issued by FAI was a renewal of the previous policy held by Dura that treats Dura as the insured party.
5 If Dura took out the new policy, VMIA contends that that policy gave FAI, as the insurer, the power to direct Dura to carry out rectification work on Cromwell on Toorak. Dura contends that if it did take out the new policy, which it denies, the new policy does not contain the power for the insurer to direct it as VMIA contends.
6 On 31 January 2011, VCAT ordered that these issues be determined as preliminary issues in the proceeding. The Tribunal determined the preliminary issues against the contentions of Dura. Thereupon, Dura sought leave to appeal against the preliminary determinations from an Associate Justice of this Court. Leave to appeal may only be granted on questions of law. The Associate Justice granted leave on some grounds and refused leave on others.
7 Dura has appealed the decision of the Associate Justice where she had refused leave to appeal. On the appeal coming on before me, I directed that the appeal against those decisions of the Associate Justice refusing leave to appeal be heard and determined along with the appeal where she granted leave to appeal. In the event of leave to appeal being granted on the hearing of the appeal from the Associate Justice, I directed that the appeal would be decided instanter.
8 These are my reasons for decision on those issues. In summary, I find that the contract of insurance was the new policy as contended for by VMIA. However, I also find that the new policy does not entitle VMIA to make directions to Dura to rectify alleged defects as VMIA contends.
9 Before turning to the matters I must decide, it is convenient to set out the relevant facts and the issues before the Tribunal. In doing that, I gratefully adopt much of the statement of facts and issues set out by the Deputy President. There is no real issue with this statement.
10 The proceeding before the Tribunal raised issues concerning legislation enacted by the Victorian Parliament following the collapse of the HIH Group in 2001, to provide cover in the home owners' warranty market for those whose policies had been issued by members of the HIH Group. In 1999, the HIH group had acquired a number of insurers in the FAI Group, including FAI. The FAI Group had been a dominant provider of insurance in the home owners' warranty market in Victoria.
11 Since home owners' warranty coverage was first introduced in Victoria, in the 1970s,[1] those involved in the construction of new homes have been required to provide coverage of one type or another to meet claims for defective or incomplete work by home builders.
12 Under the original form of coverage provided for under the House Contracts Guarantee Act 1987 (HCG Act) the instrument which the home builder was required to procure was characterised as a guarantee.[2] Under the HCG Act, there was but a single 'approved guarantor' being the Housing Guarantee Fund Limited. Section 5 of the Act prohibited builders engaging in domestic building work unless there was in force a guarantee given by the approved guarantor in the form provided for in the Act. According to s 7(1) as originally enacted, such guarantee was to be:
... a guarantee to the building owner and the owner's successors in title of the performance of the builder's obligations under the domestic building work contract.
13 Section 16 of the Act provided, inter alia, a right of appeal to the approved guarantor's appeals committee for a builder who was dissatisfied with a decision by the approved guarantor not to reject a claim made 'for loss or damage on account of a defect alleged to be caused by bad workmanship on the part of that builder.' Section 16 also provided for review applications with respect to appeals committee determinations to be made to the State's Administrative Appeals Tribunal.
14 In 1995, Parliament amended the scheme governing the insurance of domestic building contracts. It abolished the guarantee procedures under the HCG Act. The guarantee system under the 1987 Act was replaced by forms of insurance issued in accordance with ministerial orders under the Building Act 1993.
15 It vested the review jurisdiction as to such matters in the Domestic Building Tribunal under the Domestic Building Contracts and Tribunal Act 1995. In 1998, the Domestic Building Tribunal was abolished with its jurisdiction transferred to VCAT.
16 In October 1996, the responsible Minister issued a ministerial order under the authority of the Building Act 1993 with effect from 1 November 1996 requiring builders carrying out domestic building work to take out the cover referred to in the 1996 Ministerial Order.[3] The insured for the purposes of this cover was defined to mean the builder. Clause 4.2 required the builder to maintain insurance:
For the period expiring not earlier in the day six years and six months from the completion date of the last major domestic building contract entered into by the builder or earlier termination of that contract.
The builder shall procure a policy in favour of the builder indemnifying the insured [that is the builder] against claims made by a building owner during the period of insurance for any losses or damage which result from [various matters including breaches of warranties implied by Section 8 of the Domestic Building Contracts and Tribunal Act].
18 The insurance was also to cover the risk of non-completion due to death, incapacity, disappearance or insolvency of the builder.
19 In October 1998, the 1996 Ministerial Order was itself revoked and replaced by further ministerial order with effect from 1 December 1998.[4] Under the 1998 Ministerial Order builders were required to purchase on behalf of the building owner or purchaser, as the case may be, the required insurance of the kind and the amount specified in the order.
20 The definition of insured under the 1998 Ministerial Order was any person insured under a policy including the building owner but, unless expressly provided for in the policy, excluded from cover the builder, an owner builder or a building owner which was a related body corporate to the builder within the meaning of the Corporations Law or where the builder and the building owner had a common director or common shareholder.
21 Under clause 3.1 of the 1998 Ministerial Order, if a builder was covered by insurance by the revoked order immediately before 1 December 1998, the builder need not comply with the 1998 Ministerial Order before the policy under which that insurance was held was cancelled or expired.
22 Under clause 4.1 of the 1998 Ministerial Order, relevantly, a builder was required to ensure that a policy was issued which complied with all the requirements of the 1998 Ministerial Order prior to entering into a major domestic building contract.
23 Under clause 4.5 of the 1998 Ministerial Order, if a builder was covered by insurance required by the revoked Ministerial Order immediately before 1 December 1998, the builder must continue to maintain that insurance for the remainder of the period required by that order, as if that order had not been revoked.
24 As mentioned above, Dura is a builder of domestic buildings. Between 1998 and 2000 it constructed an apartment complex at 346-350 Toorak Road, South Yarra. The building permit for stage 1 of the apartment complex showed the owner as Cromwell Developments Pty Ltd. The permit issued by building surveyor Jeff Uren of Jeff Uren Pty Ltd related to a basement car park and residential apartments. It showed a cost of building work of $7,200,000.
25 In the late 1990s, the FAI Insurance Group, including FAI, assumed the leading role in the issue of builders' warranty insurance in the Victorian market. In 1999 another Australian insurer, HIH Group took over the FAI Insurance Group. On 15 March 2001, the HIH Group including FAI, was placed into provisional liquidation. Final liquidation began on 27 August 2001.
26 These events led to a crisis in the Australian insurance industry, in particular in the indemnity insurance industry. Various Government schemes were established to mitigate the effects of the HIH liquidation. In Victoria the HCG Act was amended by the addition of a Part 6 to provide a Government indemnity scheme.[5]
27 The indemnity extended to policies which were underwritten by HIH Casualty and General Insurance Limited, or FAI, including insurance required by the 1998 Ministerial Order. Section 37 of the Act as amended provided 'the State must indemnify any person who is entitled to an indemnity under an HIH policy to the extent of the indemnity under that policy'. HIH is defined to include FAI.
28 Housing Guarantee Fund Limited was made responsible for the administration of the indemnity scheme.[6] By the House Contracts Guarantee (Amendment) Act 2005[7] the indemnity scheme under Part 6 of the HCG Act was modified such that VMIA, established under the Victorian Managed Insurance Authority Act 1996, was substituted as the entity responsible for administering the indemnity scheme.
29 Section 40(1) of the HCG Act now provides as follows:
A person who has incurred a loss which is covered by an indemnity under section 37 may make a claim against the Domestic Building (HIH) Indemnity Fund in respect of that loss.
30 VMIA relies on s 44 of the HCG Act to support its claim against Dura in this proceeding. Section 44 relevantly provides:
(1) Subject to subsection (3), if a claim is made under section 40 for loss arising from incomplete or defective building work, VMIA may give reasonable directions to the builder concerned in respect of -
(a) the completion of the building work or the rectification of the defective building work; or
(b) the payment by the builder to the Domestic Building (HIH) Indemnity Fund of any amount in respect of the completion of the building work or the rectification of the defective building work.
...
(3) VMIA may only give a direction under subsection (1) or (2) to the extent that HIH would be able to require that work or require a payment to HIH by the builder under the relevant HIH policy.
(4) A builder must comply with a direction under subsection (1) or (2).
(5) VMIA may recover an amount to be paid by a builder under this section in any court of competent jurisdiction as a debt due to the State.
31 The substance of VMIA's points of claim 24 November 2008 is as follows. I will use the paragraph numbering used in the points of claim.
[3] VMIA is responsible for the administration of the indemnity scheme established under Part VI of the House Contracts Guarantee Act 1987.
[4] Dura was at all material times carrying on business in Victoria as a builder within the meaning of the Building Act 1993.
[5] In or about May 1999 [sic 1998], Dura entered into a major domestic building contract within the meaning of the Domestic Building Contracts Act 1995 for the construction of a multi-unit development at 346-350 Toorak Road, South Yarra (the works) with Cromwell Developments Pty Ltd as owner (the building contract).
[6] On or about 17 May 1999, a panel of insurers led by FAI General Insurance Company Limited (FAI) underwrote and entered into a contract of insurance with Dura whereby FAI agreed to indemnify certain building owners for any loss or damage resulting from risks set out in clause 5 of the Ministerial Order S122 made 30 October 1998 pursuant to s 135 of the Building Act 1993 (the contract of insurance).
[7] There were terms, inter alia of the contract of insurance as follows
...
(f) Dura was obliged to promptly comply with FAI's reasonable directions in relation to the completion or rectification of any work under the major domestic building contract.
[8] The building contract is a major domestic building contract within the meaning of s 2 clause A of the contract of insurance, as it is a major domestic building contract entered into by Dura between 31 May 1997 and 31 May 1999.
[9] The contract of insurance is an HIH policy within the meaning of s 35 of the House Contracts Guarantee Act 1987.
[10] By operation of s 44 of the House Contracts Guarantee Act 1987, if a claim is made under s 40 for a statutory indemnity for loss arising from incomplete or defective building work, the VMIA may give reasonable directions to the builder concerned in respect of:
(a) the rectification of the defective building works; or
(b) the payment by the builder to the Domestic Building (HIH) Indemnity Fund of any amount in respect of the completion of the building work or the rectification of defective building works;
to the extent that HIH (as defined, which definition includes FAI) would be able to require that work or require a payment to HIH by the builder under the relevant HIH policy.
[11] Dura, in breach of the building contract, performed the work on the land defectively and in breach of the warranties imported by s 8 of the Domestic Building Contracts Act 1995.
[12] The warranties imposed on the building contract by s 8 of the Domestic Building Contracts Act 1995 inure for the benefit of the owners from time to time on the homes and common property constructed as part of the works.
[13] In 2005 and 2006, each of the owners for the time being listed in the schedule to the points of claim lodged contracts with the VMIA under the provisions of Part VI of the House Contracts Guarantee Act 1987.
[14] The breach of the warranties referred to in paragraph 11 has caused loss and damage to the claimants and each of them.
[15] On 9 October 2006, VMIA accepted the claims in respect of the defects contained in the schedule to the points of claim.
[16] VMIA reasonably directed Dura to rectify the defects contained in schedule A to the points of claim as it was entitled to do by virtue of s 44 of the House Contracts Guarantee Act 1987.
[17] Dura has refused to rectify the defects, denied it is bound by the contract of insurance and denied the defects were matters which were its responsibility under the building contract.
[18] In the premises, VMIA is entitled to exercise the claimant's rights against Dura; entitled to require Dura to pay to the Domestic Building (HIH) Indemnity Fund the cost of rectifying the defects and subrogate to the rights of the claimants to require Dura to pay the loss and damage arising from the breach of the building contract.
(a) A declaration that Dura is a party to and bound by the terms of the contract of insurance;
(b) A declaration that the building works performed under the building contract contained the defects;
(c) A declaration that the defects constitute a prescribed cause within the meaning of the contract of insurance; and
(d) An order that Dura pay to VMIA the cost of rectifying the defects.
33 Dura denies it is responsible for the alleged defects. Dura also denies that any policy of insurance was issued that gave the insurer, and hence the VMIA, the right to direct Dura to rectify defects. In particular, Dura denies that it entered the policy of insurance alleged by VMIA in paragraph [6] of the points of claim. For ease of reference I will refer to the policy alleged by VMIA as the new policy, as it is alleged that it is in accordance with the 1998 Ministerial Order that came into force on 1 December 1998.
34 Dura says that it was issued with a policy that specified it was the insured and not the building owner as alleged by VMIA. Dura says this was a renewal of the policy it previously held with FAI that was in accordance with the former 1996 Ministerial Order (the old policy). Dura also says that if, contrary to its primary position, it was bound by the new policy, then the new policy on its proper construction does not permit the insurer, and thus VMIA, to give the direction to Dura to rectify the alleged defects.
VCAT orders determination of preliminary questions
35 On 25 May 2010, the Tribunal ordered that three questions arising in the proceedings be determined at a preliminary hearing. On 5 October 2010, the preliminary hearing was adjourned part heard to enable further questions to be raised based on sections 13, 14 and 37 of the Insurance Contracts Act 1984 (Cth).
36 After further hearing, the Tribunal answered the preliminary questions as follows:
(1) Question: On or about 17 May 1999 (or some other date, and what date) did FAI General Insurance Company Ltd (FAI) either by itself or with a panel, underwrite and enter into a contract of insurance with the Respondent whereby FAI agreed to indemnify certain building owners for any loss or damage resulting from risks set out in clause 5 of the Ministerial Order S122 made 30 October 1998 pursuant to s 135 of the Building Act 1993 (the Contract of Insurance), as alleged by the Applicant in paragraph 6 of its Points of Claim?
(2) Question: If yes to (1), insofar as the Contract of Insurance was in writing was it contained in the Certificate for Registration of Builder dated 17 May 1999 and in the Builders Annual Blanket Extra Policy Terms dated 29 December 1998 (the Builders Annual Blanket Extra Policy), being the documents referred to in the particulars subjoined to paragraph 6 of the Applicant's Points of Claim and/or in the Schedule being exhibit 'AG6' to the affidavit of Ms Gawthorn deposed 9 February 2010?
(3) Question: If yes, did the Builders Annual Blanket Extra Policy contain a term that on its proper construction empowered the Applicant to give the directions to the Respondent on 9 and 19 October 2006, as alleged in paragraph [16] of the Applicant's Points of Claim?
(a) Would it be a breach of Section 13 of the Insurance Contracts Act 1984 for FAI to rely on such a term if the result is that VMIA may not now rely on such term (having regard to Section 44(3) of the House Contracts Guarantee Act 1987)?
(b) Would FAI be precluded from reliance on any such term by reason of Section 14 of the Insurance Contracts Act 1984 with the result that VMIA may not now rely on such term (having regard to Section 44(3) of the House Contracts Guarantee Act 1987)?
(c) Would FAI be precluded from relying on such term by reason of Section 37 of the Insurance Contracts Act 1984 with the result that VMIA may not now rely on such term (having regard to Section 44(3) of the House Contracts Guarantee Act 1987)?
37 Under s 148 of the Victorian Civil and Administrative Tribunal Act 1988 (the VCAT Act), an appeal to the Supreme Court lies on a question of law only and leave to appeal is required.
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
39 I now turn to the alleged questions of law on which Dura seeks leave to appeal and the questions on which it has leave to appeal.
40 In relation to the first preliminary question, in finding that Dura was not insured under the FAI policy number 1804116760 issued on 17 May 1999, did the Tribunal err in law by (i) taking into account an irrelevant consideration, namely, that if Dura was the insured then it was operating illegally with inappropriate insurance cover and (ii) failing to make any findings of fact?
41 VIMA relied on the affidavits of Alison Jane Gawthorn of 9 February 2010[11] and 15 February 2010[12] and two affidavits of Trevor Leonard Stinton of 23 June 2010[13] and 19 July 2010.[14] Ms Gawthorn was an employee of VMIA. Mr Stinton was a former employee of Lowndes Lambert, Dura's insurance brokers, and of FAI. Dura did not rely on any affidavits, although it had filed affidavits. Dura relied on evidence obtained under cross-examination of Mr Stinton.
42 The following relevant documents were in evidence before the Tribunal:
(a) A Certificate of Currency dated 17 April 1997 for Residential Builders Warranty Insurance in compliance with the 1996 Ministerial Order. It named the insured as Dura. The policy no was 1804116760.[15] As the number appears on most relevant documents, I will call it the FAI policy number. The period of insurance is from 31 May 1997 to 30 June 1998 or until 30 days after the anniversary date of the builder's registration by the Building Practitioners Board. It is a claims made policy. The parties agreed that the terms of the certificate are consistent with the terms of the Builders Annual Blanket Policy published in October 1996.[16] Dura says that it was insured under this policy. There was no evidence of any certificate issued in 1998 in respect of a renewal of the policy issued in 1997. Dura's case is that it renewed this policy in May 1999 and did not enter into the new policy as VMIA alleges.
(b) An extract from the building contract between Dura and Cromwell Developments dated 22 May 1998, that identified the 'Builder's Domestic Building Insurance Policy' with the FAI policy number and FAI as the insurer.[17]
(c) A facsimile dated 17 May 1999 from Charles Wills of Lowndes Lambert, Dura's insurance brokers, to Shane Cody, an officer of Dura. The facsimile attached four pages. Mr Wills said in the facsimile that he referred to recent discussions with Phil Falloon of their office and 'attach certificates of currency for renewal of the above mentioned insurance policies.' The abovementioned policy was 'Commercial Builders Structural Defects Insurance' and 'Domestic Builders Annual Blanket Warranty.'[18]
(d) FAI Renewal Certificate dated 17 May 1999 identifying Dura as the insured and the type of insurance as 'BLD - Commercial Builders Structural Defects Policy.' [19] The policy number is the FAI number. This was one of the four attachments to the facsimile.
(e) Certificate of Currency dated 17 May 1999 for the 'Builders Structural Defects Insurance' and nominating the registered practitioners. The policy number is the FAI number.[20] The insured is identified as Dura. This was one of the four attachments to the facsimile.
(f) A Renewal Certificate dated 17 May 1999 identifying Dura as the insured and the type of insurance as 'BWB - Domestic Builders Annual Blanket Warranty.' The policy number is the FAI number. It is signed and issued by FAI.[21] The document says that for more details of this insurance, refer to the policy wording and Certificate of Currency. A Certificate of Currency similar to the one for the Builders Structural Defects Insurance (document (e) above) was not produced nor was it sighted by any witness. The Renewal Certificate was one of the four attachments to the facsimile.
(g) A Certificate of Registration for a builder dated 17 May 2009 signed by FAI. The policy number is the FAI number. The summary of cover identifies the building owner as the person indemnified. It refers to the 1998 Ministerial Order.[22] This is the last of the four documents attached to the facsimile from the brokers to Dura.
(h) The terms and conditions of the new policy issue by FAI headed 'Builders Annual Blanket EXTRA Policy (Victoria).' This policy is the policy that FAI issued as the new policy required by the 1998 Ministerial Order. The policy contains a blank schedule. The policy also contains the clause that VMIA relies on that it says entitled FAI to direct the builder to rectify defects.[23] VMIA tendered this policy.[24] Under this policy the building owner is the insured.[25] VMIA also alleges that the Certificate for Registration of Builder dated 17 May 1999 (see (g) above) identifies this policy as the policy issued to Dura [26]
(i) A document headed 'Schedule' and dated 17 May 1999. The schedule is in the form of the schedule to the new policy issued by FAI, as referred to in (h) above. The policy number identified in the schedule is the FAI number. The insured is identified as the building owner. The builder is named as Dura. The document is signed by the same FAI officer, Mr Cornell, who signed the other FAI documents of 17 May referred to above.[27] There was no evidence that this document was sent to Dura's brokers or Dura. The only evidence about its source was that it was accepted that it was issued by FAI and that it was located in the files of VMIA.
(j) A memorandum of insurance under the name of Lowndes Lambert dated 20 June 1999 naming Dura as the insured and bearing the FAI policy number. It states that the insurance is 'Building Practitioners - Building Act 1993'.[28]
43 The evidence of Mr Stinton was also relevant to the issue of which policy FAI had issued in favour of Dura.[29] Mr Stinton was called by VMIA and cross-examined by Dura. He had worked at both Lowndes Lambert and at FAI. He joined FAI in 1996 and remained with FAI until about March 1999.
44 He said that his role at FAI was as product manager of builders' warranty insurance. He said that he was intimately involved in the preparation of the policy wording that was introduced by FAI in December 1998 to comply with the 1998 Ministerial Order[30] He said the he was involved in drafting the policy and in having solicitors in Sydney settle the words of the policy.
45 Mr Stinton gave evidence about the procedure adopted by FAI when a policy of domestic building warranty insurance was written by the underwriting department at FAI. He said 'FAI would post out to the broker concerned the policy document with the Schedule of Insurance relating to it, together with a Certificate for Registration of a Builder with the Building Control Commission, and an 'Important Notice to Builders'. He said that 'those documents went out in a package together, and this was our standard practice.'[31]
46 On cross-examination, Mr Stinton agreed that he left FAI before May 1999 in about February or March 1999. He initially claimed that he was with FAI until 2000 but accepted that was a mistake. He identified the signature of Mr Cornwall, the officer of FAI, on the Renewal Certificate dated 17 May 1999, that was attached to the facsimile sent by Mr Wills to Dura's broker. He accepted under cross-examination that the certificate identified Dura as the insured and that the underwriting department of FAI had renewed the old policy by mistake rather than issue the new form of policy required by the 1998 Ministerial Order.[32]
47 Mr Stinton said that from 1 December 1998 until he left FAI in February or March 1999, FAI in Victoria had two types of domestic builders warranty insurance: a job specific policy where certificates were issued for each job and the Builders Annual Blanket Extra Policy, the new policy.[33] It was implicit in this answer that FAI were not issuing renewals of the old policy in 1999.
48 After the Deputy President had outlined the background to the statutory scheme and summarised in detail the arguments of Dura and VMIA, he turned to the central issue of which policy of insurance had FAI issued to Dura for the relevant period. He had before him the several documents relating to the form of insurance that Dura had with FAI that I have described above.
49 VMIA bore the onus of establishing that Dura was insured under the new policy. Dura had elected to call no evidence from its officers as to any dealings with its insurance brokers or with FAI. It presented the evidence it wished to lead through its cross-examination of Mr Stinton.
50 The Tribunal rejected Dura's contentions that FAI had issued the old policy to Dura. The Deputy President said:[34]
I reject this view of things. First, by virtue of [the 1998] Ministerial Order ... in Section 135 and the following sections of the Building Act 1993 it was mandatory for Dura to hold insurance in the form of [the 1998 Ministerial Order]... If Dura's contentions on this point are correct it was operating illegally with inappropriate cover. It seems unlikely that Dura would have done such a thing or that Lowndes Lambert and FAI would have facilitated it.
51 The Tribunal went on to consider other grounds. It held that the broker was the agent of Dura and not FAI.
(a) The question of whether Dura, the broker or FAI were acting (whether intentionally or unintentionally) contrary to the precise terms of a revised Ministerial Order is irrelevant to the determination of the legal relationship of Dura and FAI.
(b) In determining the question of who was the insured, the Tribunal was required to make findings of fact to support legal conclusions;
(c) The Tribunal failed to make any findings of fact;
(d) The legal conclusions made by the Tribunal were made without making any relevant findings of fact.
53 In my opinion, it was possible to infer from the documents and other evidence before the Tribunal that FAI issued either the old or new policy. For instance, Dura placed great reliance on the Renewal Certificate document (f) as it identified Dura as the insured. Whereas VIMA placed reliance on document (g), the Certificate of Registration of Builder that came in the same bundle as (f), but identified the person indemnified as the building owner. The Certificate of Registration of Builder also indicates that the insurance cover is under the 1998 Ministerial Order. VMIA also relied on the Schedule, document (i), that identified the building owner as the insured.
54 In deciding which policy (the old or the new) was taken out by Dura, was it legitimate for the Tribunal to have regard to the existing legislative scheme? In my opinion, it was. Where there is ambiguity in the language of the documents or inconsistencies between the several relevant documents, the court is entitled to have regard to the regulatory framework for the purpose of construing the agreement.[35] The framework not only includes the 1998 Ministerial Order but the fact that:
(a) FAI had been in negotiation with the Victorian state government and had prepared the new policy to comply with the new regulatory framework:
(b) in early 1999, FAI had been issuing to builders the new policy; and
(c) in early 1999, FAI was not issuing the old policy to builders.
55 I consider it was relevant for the Tribunal to have regard to the likelihood that FAI would be seeking to observe the new regulatory framework, particularly as FAI was well aware of the new regulatory framework and had devised and had settled by lawyers a new policy to purportedly comply with the new regulatory framework.
56 In those circumstances, I do not consider that the Tribunal erred in law in having regard to the fact that if FAI had issued the old policy then Dura would not be complying with the new regulatory framework and it is unlikely that FAI and its broker would have facilitated such a situation.
57 Under this question, Dura also seeks leave to appeal on the grounds that the Tribunal failed to make any findings of fact in determining that Dura was bound by the new policy.
58 It is implicit in the Tribunal's decision that it made findings of fact in accepting that the various documents that were relied on were sourced from FAI and the brokers, as the case may be. The Tribunal also made findings of fact in accepting the evidence of Mr Stinton about the genesis of the new policy and the practice and procedure of FAI. I do not perceive any error of law that would justify leave to appeal.
59 I dismiss the application for leave to appeal on this question.
60 In relation to the first preliminary question, in finding that Dura was not insured under the FAI policy number 1804116760 issued on 17 May 1999, did the Tribunal err in law by denying Dura an opportunity to be heard on the question of whether it was operating illegally?
61 Dura contends that it was not given any notice that the Tribunal would rely on this reason to rule against it. Dura says that had it been on such notice, it would have submitted as follows:
(i) First, there was no requirement for domestic builders warranty insurance because the Domestic Building Contracts Act 1995 does not apply to developers. Therefore, the only insurance which was required was commercial insurance (structural defects) and the evidence was that such a policy was in place;
(ii) Second, assuming that the Tribunal's assertion that Dura would have been operating illegally was correct, and insofar as that might have any bearing on the matter (which Dura denies) Dura had been advised by the Master Builders Association of Victoria that the annual polices would continue to be legal and valid and would continue to be offered after 1 December 1998;
(iii) Third, any non-compliance would be remedied by the provisions of the 1998 Ministerial Order which effectively deems non-conforming policies to comply.
62 By this question, Dura seeks to raise a denial of natural justice point. The failure to afford natural justice may constitute an error of law.[37] I do not consider, however, that the matters relied on are arguable or otherwise justify leave to appeal.
63 On the first ground, Dura says that it would have sought to rely on the decision of Kane Constructions v Sopov[38] which its says held that the Domestic Building Contracts Act 1995 does not apply to developers. Dura says that it was a developer.
64 VMIA says that Dura was alert to this issue during the hearing. Dura, in its defence to the VMIA points of claim, pleaded that the Domestic Building Contracts Act 1995 did not apply to developers. During VMIA's opening to the Tribunal on 5 October 2010, VMIA made clear that it was contending that if Dura had not affected insurance under the new policy that it would be in breach of its obligations under the HCG Act, and that was a compelling reason for concluding in this case that the ambiguity in the documents that had been issued by FAI should be resolved in favour of the new policy. VMIA contends that if Dura wished to contend that it was not subject to the HCG Act then it had every opportunity to do so.
65 Dura also says that it would have sought to adduce further evidence concerning advice that it had received from the Master Builder's Association. Dura says that it would also have argued that non-compliance would have been remedied by the terms of the Ministerial Order. For my part I have difficulty in understanding how a Ministerial Order can alter the terms of a contract of insurance and provide cover to somebody who is not covered by the actual terms of the policy.
66 In any event, for the reasons already given, Dura were forewarned of the illegality argument of VMIA. Dura was not denied natural justice by being deprived of the opportunity to run these arguments.
67 I dismiss the application for leave to appeal on this question.
68 In relation to the first preliminary question, in finding that Dura was not insured under the old FAI policy, did the Tribunal err in law by concluding that, if Dura was the insured under the policy, then it would have been operating illegally?
69 Question 1B raises similar issues to question 1A. Question 1A contends that Dura was denied natural justice by not being given the opportunity to make submissions on the issue of whether it would have been operating illegally if it was not insured under the new scheme. Question 1B contends that it would not have been acting illegally in any event if it was not insured under the new scheme.
70 Similarly to question 1A, Dura says that there was no requirement for domestic builders warranty insurance because the Domestic Building Contracts Act 1995 does not apply to developers. Dura says that therefore, the only insurance which was required was commercial insurance (structural defects) and the evidence was that such a policy was in place. Further, Dura says that even if domestic builders warranty insurance was required, Dura would not have been operating illegally because the old FAI policy is deemed to comply with the 1998 Ministerial Order, and therefore did comply.
71 This ground was not raised by Dura before the Associate Justice, nor before the Tribunal. The Tribunal was only obliged to determine the issues before it and Dura did not seek to pursue these arguments below. As mentioned above, VMIA sought to support its contention that the ambiguity in the various documents issuing from FAI should be resolved in favour of conformity with the scheme. I do not consider that leave to appeal should be given when the matters were not raised before the Tribunal nor before the Associate Justice.
72 I dismiss the application for leave to appeal on this question.
73 In relation to the first preliminary question, in finding that Dura was not the insured under the FAI policy number 1804116760 issued on 17 May 1999, did the Tribunal err in law by failing to take into account relevant matters, namely the evidence of Mr Stinton that FAI had on 17 May 1999 renewed the policy with Dura as the insured?
74 Dura says that the Tribunal failed to take into account the following evidence of Mr Stinton that:
(a) by the FAI Renewal Certificate issued on 17 May 1999[41] FAI was renewing policy number 1804116760 with Dura as the insured; and
(b) the FAI policy number 1804116760 with Dura as the insured was a fundamentally different policy from the one relied on by the VMIA.
75 Dura contends that Mr Stinton gave evidence that the renewal certificate was renewing the existing policy with Dura named as the insured. Dura says this was crucial evidence in support of Dura's case and fatal to the VMIA contention that Dura was not the insured. Dura says that, 'remarkably,' the reasons for decision do not address this evidence. Dura says that clearly the Tribunal overlooked this important evidence or otherwise failed to take it into account, and thereby erred in law.
76 During cross-examination Mr Stinton was shown the Renewal Certificate of 17 May 2009. He recognised the signature of Mr Greg Cornwall for FAI. When asked if he agreed that by 'this Renewal Certificate we can see that it's renewing policy number 1804116760?' he replied 'correct.' It was put to him that 'it is a Renewal Certificate renewing a policy in respect of which Dura is the insured?' and he replied 'correct.'[42]
Question: But you say there that by this time, FAI should be issuing the new policy. You've been referring to the owner-insured policy?
Mr Stinton: That's correct.
Question: Because the builders is extra?
Mr Stinton: Yes.
Question: You weren't of course responsible for or associated with issuing this Renewal Certificate, were you?
Mr Stinton: No, I wasn't.
Question: Would you agree with me that the most likely explanation for what appears to be the renewal of the old form of policy and the document we're looking at, RM5 [Exhibit 2], rather than the new one that you referred to as the new marketing product with the owner as insured, was an underwriting mistake by those responsible for underwriting at FAI after you left. It looked like some error in the underwriting department doesn't it?
Mr Stinton: It appears to me to be.
78 Dura says that the Renewal Certificate[44] is not mentioned in the Tribunal's reasons. Dura says that the Tribunal misdirected itself by not making findings of fact as to whether or not FAI had issued the old policy by mistake as Mr Stinton agreed it had. Dura contends that the Tribunal was not able to determine the legal question of whether Dura was bound by the direction of VMIA without making these findings of fact, and to do so is an error of law.[45]
79 Under the heading of 'Which Policy' the Tribunal began:
[102] VMIA's contention as recorded above is that Dura purchased cover for the relevant period in accordance with the terms of what is described as 'the second policy.' [Dura] contended that the policy was on different terms and evidenced inter alia by a Memorandum of Insurance issued to Dura by brokers Lowndes Lambert and referring to policy 'I804116760'. The period of cover is shown as from 30 June 1999 to 30 June 2000. This memorandum shows the insured as Dura. It includes a page which appears to be part of a standard printed form by Lowndes Lambert as to various insurance issues such as duties of disclosure and so forth. [The Tribunal then examined the memorandum and Dura's argument that it did not refer to the new policy].
80 The Tribunal rejected this argument, referring to two grounds. First, the Tribunal said that entering into the old policy would not have complied with the 1998 Ministerial Order. Secondly, the Tribunal said that the brokers were the agent of Dura not FAI.
81 Subsequently, the Tribunal referred to Dura being described as the insured 'in a number of places.' In particular, the Deputy President said:
[117] I am conscious that the finding that I have made is in the face of the description in a number of places including the certificate of currency, the Lowndes Lambert memorandum of insurance and so on of Dura, as 'the insured' a matter [Dura] have observed that is quite inconsistent with the terms of the second policy as evidenced in the relevant document. In my view this is a reflection of the regrettably 'slap dash' approach which appears to be taken in the insurance industry to the documentation of very important relationships. Where these various documents referred to Dura as being 'the insured' they mean no more in my view than that it is Dura which has purchased the cover and paid the premium albeit for the benefit of the various building owners and their successors in title.
82 In my opinion, in this passage the Tribunal was referring to the Renewal Certificate as one of the number of places where Dura was identified as the insured.
83 The Tribunal went on to mention the difficulty in describing accurately who the insured was where the insured was the building owner. The Tribunal said that in the case of Cromwell on Toorak, it would have been impossible to have given an exhaustive list of the names of the unit holders as at the time of the issue of the relevant certificate.
84 Before me, Dura accepted that the broker was its agent. In making its case that Dura was the insured rather than the building owner, Dura relied primarily on the email from the broker containing the four documents issued by FAI and in particular the Renewal Certificate.[46]
85 The Tribunal observed that the policy relied on by Dura (that is with Dura as the insured) was 'evidenced inter alia by a Memorandum of Insurance.' (my emphasis) The only other document that did evidence Dura as the insured under the 'Domestic Builders Annual Blanket Warranty' was the Renewal Certificate. Further, as discussed above, the Tribunal referred to the fact that Dura was identified as the insured 'in a number of places.' Clearly this is a reference to places in documents before the Tribunal.
86 I am not satisfied that the Tribunal did ignore the Renewal Certificate. On the contrary, I am satisfied that it did take the Renewal Certificate into account.
87 In any event, the alleged question of law relates to Mr Stinton's evidence that the FAI Renewal Certificate was renewing the old policy with Dura as the insured. Mr Stinton was merely asked to read one particular document that supported Dura's case. It was the Tribunal's task to consider all the evidence. It is not disputed between the parties that there were inconsistencies between the documents that were in evidence.
88 Dura point to one aspect of the inconsistencies in the documents, that is the reference in the Renewal Certificate to Dura as the insured. How the inconsistencies in the documents should be resolved was a central issue in the case. Mr Stinton merely gave evidence on what the position would be if the only relevant document was the Renewal Certificate. I do not consider that it was critical to the Tribunal's decision for the Tribunal to accept or not accept Mr Stinton's evidence on these issues. The critical issue was to resolve, in the face of conflicting documents, the contract between Dura and FAI. Mr Stinton's evidence was relevant to that issue in other ways as the Tribunal noted and I have already discussed, such as the practice of FAI at the time to only issue the new policy and not to reissue the old policy, and Mr Stinton's evidence about FAI's involvement in the development of the new policy to comply with the 1998 Ministerial Order.
89 I dismiss the application for leave to appeal on this question.
90 In relation to the first preliminary question, in finding that Dura was not the insured under the FAI policy number 1804116760 issued on 17 May 1999, did the Tribunal err in law by denying Dura natural justice?
(i) Various documents in evidence named Dura as the insured, including the FAI Renewal Certificate issued on 17 May 1999;[48]
(ii) The finding in paragraph 117 of the reasons that the evidence naming Dura as the insured should be dismissed on the basis that it was merely a 'reflection of the regrettably 'slap dash' approach which appears to be taken in the insurance industry to the documentation of very important relationships' and that such references should be read as meaning 'no more in my view than that it was Dura which had purchased the cover and paid the premium albeit for the benefit of the various owners and their successors in title' was not a point raised by either VMIA or the Tribunal during the hearing;
(iii) Accordingly, Dura was denied an opportunity to address this issue by further evidence and/or submission.
92 VMIA submits that Dura was not taken by surprise on this issue. It says that Dura's case was that despite FAI issuing a Schedule that identified the owner as the insured and a Certificate for Registration indicating insurance had been issued in accordance with the 1998 Ministerial Order (and that the building owner was the insured), the actual insurance issued by FAI was a renewal of the old policy that treats Dura as the insured. Thus Dura's case was that FAI had failed to properly document the actual insurance that FAI had issued to Dura.
93 VMIA contends that it would have been readily apparent to Dura that if the Tribunal accepted either Dura's case or VMIA's case that the Tribunal may seek to explain the inconsistencies in the document.
94 VMIA says that if Dura wished to explain these inconsistencies that supported its case, it could have called evidence from FAI, its broker, or its own officers to seek to do so. VMIA says that Dura chose not to call any witnesses.
95 I agree with the submissions of VMIA. In my view, it would have been clear to Dura that one explanation for the inconsistencies in the various documents in evidence could have been that suggested by the Tribunal.
96 I dismiss the application for leave to appeal on this question.
97 In relation to the first preliminary question, in finding that Dura was not the insured under the FAI policy number 1804116760 issued on 17 May 1999, did the Tribunal err in law:
(a) by making a decision that was so unreasonable that no reasonable Tribunal could have made it;
(b) further or alternatively, was the finding that Dura was not the insured under the FAI policy number 1804116760 issued on 17 May 1999 illogical and irrational;
(c) further or alternatively, did the Tribunal fail to determine the question fairly and according to the substantial merits of the case, contrary to section 97 of the Victorian Civil and Administrative Tribunal Act 1998?
98 Dura contends that Dura and VMIA agree that from May 1997 to May 1999 Dura was insured under the first policy, being FAI policy number 1804116760 with Dura as the insured. Dura relies on the evidence of Mr Stinton that on 17 May 1999 FAI issued to Dura's agent (Lowndes Lambert) a Renewal Certificate for policy number 1804116760[50] naming Dura as the insured. Dura argues that the evidence of Mr Stinton was that this renewed policy was fundamentally different from the policy contended by VMIA. Dura says that the only reasonable, logical and rational conclusion open on the evidence was that on 17 May 1999 FAI renewed the policy number 1804116760 with Dura as the insured.
99 Dura submits that the conclusion[51] that 'in those circumstances I reject the contention that Dura was operating under cover of some renewed incarnation of what has been described as the first policy' was unreasonable, illogical and irrational, unfair to Dura and contrary to the substantial merits of the case.
100 VMIA contends that alleged errors of law are a mere attempt to re-litigate the factual issues.
101 There was evidence before the Tribunal that permitted it to conclude that the FAI issued the new policy to Dura. As mentioned above, evidence was tendered that on 17 May 2009, FAI had issued the Schedule under the new policy that identified the building owner as the insured. Evidence was led that it was the practice of FAI to provide the Schedule to the broker when issuing a new policy.
102 The evidence also disclosed that Dura's broker sent to Dura a bundle of inconsistent documents issued by FAI on 17 May 2009. These documents included a Renewal Certificate that suggested FAI had renewed the old policy of Dura and a Certificate of Registration that suggested the new policy had been issued by FAI to Dura.
103 The Tribunal had evidence that FAI was well aware of the 1998 Ministerial Order, that FAI had consulted with the government and drafted a new policy to meet the 1998 Ministerial Order, and had done so before May 1999. The Tribunal had evidence before it that in early 1999, the only policies that FAI was issuing in relation to builders indemnity insurance was the new policy, and job specific policies that were not relevant to the issues in the proceedings, and that FAI was not issuing the old policy.
104 The inference that the Tribunal drew in finding that FAI had issued to Dura the new policy was based on all the evidence before it. In Jones v Dunkel[52] Dixon CJ described the Court's task in determining whether a conclusion has been satisfied on the balance of probabilities where inferences are relied on to do so. He said:[53]
In an action of negligence for death or personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that "you need only circumstances raising a more probable inference in favour of what is alleged". But "they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture". These phrases are taken from an unreported judgment of this Court in Bradshaw v. McEwans Pty. Ltd. (Unreported, delivered 27th April 1951). which is referred to in Holloway v. McFeeters [1956] HCA 25; (1956) 94 CLR 470; by Williams, Webb and Taylor JJ. The passage continues: "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." (1956) 94 CLR, at pp 480, 481 But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
105 In Metcalf Crane Services Pty Ltd v Rathner[54] I considered the circumstances where a fact finding Tribunal or Court makes an error of law in its findings.[55] I there held that in deciding whether an error of law was made the issue for the Court is whether the conclusion of the Tribunal was reasonably open to it upon the facts and the evidence.
106 In this case, the Tribunal did have evidence before it from which it could reasonably infer on the balance of probabilities in accordance with the principles enunciated by Dixon CJ in Jones v Dunkel[56] that the policy FAI actually issued to Dura was the new policy.
107 I do not consider this question warrants leave to appeal.
108 Accordingly, I dismiss the application for leave to appeal on this question.
109 In relation to the second preliminary question, in finding that the terms of the policy issued on 17 May 1999 were those of the 'Builders Annual Blanket Extra Policy', did the Tribunal err in law by failing to properly apply the principle that an insurer, when issuing a policy, is obliged to issue a policy which is not inconsistent with the express terms of the parties' preliminary contract?
110 In support of this question, Dura relies on the following grounds:
(i) Dura and VMIA agreed that from May 1997 to 31 May 1999 Dura was insured under the first policy, being FAI policy number 1804116760 with Dura as the insured;
(ii) The evidence of Mr Stinton was that on 17 May 1999 FAI issued to Dura's agent (the broker Lowndes Lambert) a Renewal Certificate for policy number 1804116760 (Exhibit 2) naming Dura as the insured;
(iii) If on or after 17 May 1999, FAI had posted to Dura a policy document in the form of the Builders Annual Blanket Extra Policy Terms, then that document would have been substantially inconsistent with the bargain concluded on 17 May 1999 as evidenced by the 17 May 1999 Renewal Certificate.[58]
111 Dura relies on a principle of insurance law referred to in MacGillivray on Insurance Law[59] where the learned authors say under the heading of 'Insurers' usual terms':
A court will not require the parties to have reached separate agreement on all the terms of the insurance, apart from the essential terms described above, in order that a contract should be held to exist. It will readily be assumed that, when an applicant seeks insurance cover from particular insurers, he impliedly offers to take an insurance on the insurer's usual, or standard terms of cover, just as the insurer's interim cover note will be issued impliedly subject to the usual conditions contained in their policies. When, therefore, the insurers come to issue their policy, their only obligation is to issue it with the terms and conditions usually attached to their policies, in so far as these are not inconsistent with the express terms of the parties' preliminary contract.
112 This principle was applied in Moutidis v Housing Guarantee Fund Limited (Moutidis).[60] Dura contends that it had a preliminary agreement with FAI for the renewal of the old policy. Thus, Dura says, the insurers were obliged to issue the policy in accordance with the old policy. Dura says that the Tribunal held after referring to this principle, that 'the situation is that the terms of the second policy relied on by VMIA are prima facie applicable'.
113 Dura says that the Tribunal failed to apply the principle correctly as the preliminary agreement between Dura and FAI was to renew the old policy.
114 VMIA says that the Moutidis point does not arise as in this case there was no pre-existing arrangement that was inconsistent with the new policy. VMIA refers to the documents sent under cover of the facsimile of Mr Wills to Mr Cody. VMIA says that facsimile said that 'certificates' of currency were attached. The Certificate of Currency for the commercial builders structural defects policy was attached and followed the Renewal Certificate for that insurance.[61]
115 The Renewal Certificate for the Domestic Builders Annual Blanket Warranty was attached. It said that 'for more details of this insurance see the policy wording and the Certificate of Currency'. VMIA contends that the Certificate of Currency is the Certificate for Builder Registration.[62] VMIA says that this certificate correctly identifies that the policy is the new policy insuring the building owner. VMIA says that Dura led no evidence that it had asked for anything different.
116 I do not perceive any error in the application of the Moutidis principle by the Tribunal. The Tribunal found that the preliminary agreement was that FAI would issue the new policy. The new policy was in existence and it was the practice of FAI to issue the new policy. FAI was not issuing the old policy in early 1999. The Tribunal, on all the evidence before it, resolved the ambiguity in the documents by inferring that the actual policy agreed to was the new policy.
118 In relation to the second preliminary question, in finding that the Builders Annual Blanket Extra Policy Terms applied to policy number 1804116760 issued on 17 May 1999, did the Tribunal err in law by applying the presumption of continuance?
119 Dura relied on the following grounds. In circumstances where the evidence was that:
(i) Mr Stinton ceased employment at FAI in about February 1999;
(ii) on 17 May 1999, FAI renewed policy number 1804116760 with Dura as the insured;
(iii) the usual practice at FAI during Mr Stinton's time was that when a policy was issued by the underwriting department a copy of the policy document relating to it, together with the certificates, was subsequently posted to the broker;
(iv) accordingly, the only inference which was open on the evidence was that after 17 May 1999 FAI posted to Dura's broker a copy of the policy document relating to the policy which had been renewed with Dura as the insured;
(v) it was not open therefore to infer or find that FAI had posted to Dura a policy document which did not relate to the policy being renewed and which was fundamentally different from the terms of the renewed policy.
120 As indicated above, the Tribunal found that FAI issued the new policy to Dura. According to Mr Stinton, it was FAI's practice to send the relevant policy to the customer's broker. Mr Stinton had left FAI before FAI issued a policy to Dura on 17 May 1999. The Tribunal inferred on the presumption of continuance that the relevant policy would have been sent by FAI to the broker in accordance with the practice described by Mr Stinton, and in this case that would have been the policy wording for the new policy.
121 I do not see that there was any error of law in the reasoning of the Tribunal. Mr Stinton gave evidence of FAI's practice whilst Mr Stinton was at FAI to send the terms of the issued policy to the customer's broker. The inference was open to be drawn by the Tribunal, in the absence of any evidence to the contrary, that this practice continued in the month or so after Mr Stinton left FAI. Dura called no evidence to rebut the inference. Under Jones v Dunkel[64] the Tribunal was, therefore, more readily able to draw the conclusion that on the balance of probabilities the new policy was sent by FAI to the broker.
122 I do not consider this question warrants leave to appeal.
123 Accordingly, I dismiss the application for leave to appeal on this question.
124 In relation to the third preliminary question, did the Tribunal err in the construction of the Builders Annual Blanket Extra Policy?
(i) On its proper construction special condition 2(c) did not permit FAI to direct Dura to rectify defects;
(ii) The conclusion that special condition 2(c) did permit FAI to direct Dura to rectify defects is inconsistent with the express terms of the policy limiting FAI's rights of subrogation;
(iii) The finding (at paragraph 133) that Dura was not entitled to the benefit of the capped subrogation in Section 3 of the policy because Dura 'has not performed all of its obligations because it has refused to carry out any rectification work' was erroneous because the benefits in Section 3B (capped subrogation) always intended that there would be defects, and if the builder had to rectify defects in order to have the benefit of the capped subrogation, then there would be no benefit.
126 On the other hand, VMIA contends that special condition 2(c) enlivens its powers under s 44 of the HGA Act set out above and enables it to give the directions to Dura on 9 and 19 October 2006, as alleged in paragraph [16] of VMIA's Points of Claim.
127 In my opinion, special condition 2(c) does not so empower VMIA.
Reasons why special condition 2(c) does not justify direction of VMIA.
3 BUILDER
A. The Insurer is subrogated to any right of the Insured against the Builder and/or any other person contracted by the Builder or otherwise engaged to perform the building work under the Major Domestic Building Contract upon the Insurer accepting liability for a claim or any part thereof made by the Insured under this policy regardless of:
(1) when the Insurer makes a payment in relation to such claim; and
(2) whether the Insured will be fully indemnified for all loss and damage suffered by the Insured in relation to the claim.
B. In respect of each claim referred to in Clause A of this Section, subject to:
(1) the Builder paying the Insurer within 30 days of demand by the Insurer the lesser of:
(i) the Reimbursement Amount; and
(ii) the sum for which the Insurer accepts liability in relation to the Insured's claim and all costs and expenses incurred by the Insurer in relation to such claim; and
(2) the terms, conditions, limitations and exclusions in this policy applicable to the Builder including the Builder's compliance with them (which so far as the nature of them respectively permit are conditions precedent to the Builder's right under this Clause B);
the Insurer will not enforce its right of subrogation to recover from the Builder any sum for which the Insurer accepts liability, or any costs and expenses incurred by the Insurer, in relation to such claim.
C. In respect of each claim referred to in Clause A of this Section, subject to the terms, conditions, limitations and exclusions in this policy applicable to the Builder including the Builder's compliance with them (which so far as the nature of them respectively permit are conditions precedent to the right of the Builder under this Clause C):
(1) if the Builder with the Insurer's prior written approval rectifies all or any defects that are the subject of the claim at an agreed cost ("Agreed Cost") and:
(i) the total cost of all rectification for which the Insurer accepts liability is less than the Reimbursement Amount and the Builder bears that total cost; or
(ii) the total cost of all rectification for which the Insurer accepts liability is greater than the Reimbursement Amount and the Builder bears the cost up to the Reimbursement Amount;
the Insurer will not enforce its right of subrogation to recover from the Builder any sum for which the Insurer accepts liability, or any costs and expenses incurred by the Insurer, in relation to such claim; and
(2) where the Agreed Cost in relation to Clause C(1)(ii) exceeds the Reimbursement Amount the Insurer will pay to the Builder the amount of that excess;
PROVIDED THAT:
(3) the Insurer will not be liable to the Builder under this Clause C for the cost of the Builder completing its obligations (including compliance with warranties implied by Section 8 of the DBC Act) under the Major Domestic Building Contract including without limiting the foregoing the cost of rectifying any defect that the Builder must rectify under a defects liability or maintenance period provision or other like provision of such contract; and
(4) these provisions are subject to the Insured's right to refuse access to the Builder as referred to in Clause 2(e) of Claims Procedures.
129 Amongst the special condition subjoined to Section 3 the following appears:
(2) In respect of any claim, the Builder must:
(a) provide the Insurer or any person nominated by the Insurer with reasonable access to the relevant building site for the purpose of inspection and/or rectification or completion of domestic building works;
(b) not undertake or cause to be undertaken any rectification works without the Insurer's prior written approval;
(c) promptly comply with the Insurer's reasonable directions in relation to the completion or rectification of any work under the Major Domestic Building Contract; and
(d) take all reasonable precautions to avoid or minimise additional loss or damage.
130 VMIA relies on special condition (2)(c) to support its claim. VMIA says that special condition (2)(c) authorises VMIA to give directions to Dura to rectify the alleged defects of Cromwell on Toorak.
131 Dura, on the other hand, says that the special condition does not authorise VIMA to give directions to Dura arising out of VMIA's acceptance of the claims of owners. Dura says that the special condition only relates to work which is rectified while the contract is still being completed or during the defects liability period.[66] In other words, it only applies where Dura has a contractual obligation to rectify under the building contract or agrees to rectify the defects.
The Tribunal's construction****[67]
132 The learned Deputy President of the Tribunal found this issue the most difficult question for determination.[68] The Deputy President dealt with Dura's contentions saying that it had been said that Clause C embodied a regime of 'capped subrogation' whereby the Builder's liability to rectify is limited to the reimbursement amount of $10,000 for each property. He said that Dura contended that this regime was inconsistent with a blanket entitlement on the part of FAI, and by extension, VMIA, to require the Builder to carry out rectification work. He said that Dura's submission was that the two provisions (Clause C and special condition 2(c)) are to be read together, treating special condition 2(c) as applying only where under Clause C the Builder is completing its obligations under the major building contract and, therefore, under Clause C the Insurer is not liable to reimburse the Builder for this rectification work.
133 The Deputy President referred to Dura's contention that this construction was consistent with the view that Section 3 of the policy was intended to provide special benefits to the Builder in accordance with the title of the policy 'Builder's Annual Blanket Extra Policy.' (my emphasis)
134 The Deputy President agreed with the submission of VMIA that Section 3 is not devoted solely or even primarily to providing extra benefits to the Builder rather 'it is in part governing the relationship of FAI with the Builder.' The Deputy President said that Clause A created a general right of subrogation in favour of the Insurer and against the Builder. He said this was scarcely an extra benefit.[69]
135 The Deputy President agreed that it was necessary to read the two clauses, namely Clause C and special condition 2(c) together. He said that VMIA submitted that the proper way to read the two clauses was that the Builder was entitled to 'capped subrogation' in accordance with Clause C but only if the Builder otherwise performed all of its obligations under the contract, one of those obligations being the one imposed by special condition 2(c). He said this interpretation had the advantage of enabling a literal interpretation of special condition 2(c) to be applied. He says this interpretation gives literal effect to the words without the implication of other words or any implied restriction on the literal operation of the words.
136 The Deputy President said that given the policy is a printed standard form and that both of the potentially inconsistent provisions are part of that printed form and are therefore part of what he supposed was intended to be a harmonious whole, a construction that allows the two provisions to be read together literally would seem the more likely one.
137 In construing the policy of insurance the relevant principles of contractual construction should be kept in mind. In McCann v Switzerland Insurance Australia Ltd[70] Gleeson CJ said:
A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.
138 In Manren Ltd v Royal & Sun Alliance Insurance Australia Ltd[71] Callaway JA said:
... no narrow or pedantic approach is to be taken in the construction of commercial contract including insurance policies. On the contrary, they are to be construed in a fashion that accords with common sense, facilitates commerce, contains costs and secures public confidence in the courts.
139 In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[72] the High Court of Australia said that the meaning of words in a contract is to be determined objectively, by reference to what a reasonable person would have understood them to mean. The High Court has said that this requires consideration not only of the text, but also of the surrounding circumstances known to the parties and the purpose and object of the transaction.[73]
In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
141 These principles of construction were cited with approval by the High Court of Australia in Pacific Carriers Ltd v BNP Paribas.[76] Bearing these principles in mind, I now turn to the contested construction of the policy.
142 The Builders Annual Blanket Extra Policy is divided into three sections. Section 1 deals with the insurance cover of the building owner. Section 2 provides for transitory run-off indemnity cover for the building owner. Section 2 was necessary to cover building owners where the building work had commenced before the policy commenced. Both sections 1 and 2 are in compliance with the 1998 Ministerial Order. Section 3 is not required by the 1998 Ministerial Order.
143 Section 3 deals with rights of the Builder. Builder's rights are referred to in Clause B, and special conditions (3), (5) and (6).
144 There are three clauses in Section 3, Clauses A, B and C. Clause C contains a proviso and there are special conditions applicable to the whole of Section 3.
145 In construing Section 3, it is necessary to keep in mind that this is a pro forma document giving effect to a commercial arrangement. As indicated above, it must be construed commercially and with common sense. In substance, under Clause A the Insurer is subrogated to any right of the Insured against the Builder regardless of whether the Insurer makes a payment in relation to a claim and whether the Insured will be fully indemnified for all loss and damage suffered by the Insured.
146 At common law, after payment of a loss, an insurer is entitled to exercise in the name of the insured whatever rights the insured possesses to seek compensation from third parties.[77] Thus Clause A builds on and extends the Insurer's common law rights that it would otherwise have against the Builder. Under the 1998 Ministerial Order the policy may (not must) entitle the Insurer to be subrogated to the rights of the Insured.[78]
147 Putting aside the special conditions for the moment, Clauses B and C confer significant rights on the Builder. Under Clause B, the Insurer agrees not to enforce its right of subrogation to recover from the Builder any sum for which the Insurer accepts liability in certain circumstances. The Insurer agrees to do so, subject to the Builder paying to the Insurer the lesser of the Reimbursement Amount and the sum for which the Insurer accepts liability in relation to the Insured's claim, and subject also to the terms, conditions and limitations in the policy (which are conditions precedent to the Builder's right under Clause B).
148 Thus if for example, the Insurer agreed to pay the Insured $20,000 on a claim, the Builder would be relieved of a subrogation claim by the Insurer of $20,000 if the Builder paid to the Insurer the Reimbursement Amount of $10,000, subject to the other terms and conditions of the policy.
149 Under Clause C, subject to the other terms and conditions of the policy, if the Builder with the Insurer's prior written approval rectifies defects that are subject to the Insured's claim at an agreed cost, then if the total cost of the rectification is less than the Reimbursement Amount or greater than the Reimbursement amount the Insurer will not enforce its rights of subrogation. Where the agreed cost is greater than the Reimbursement amount the Insurer is to pay the excess to the Builder.
150 Clause C is subject to a Proviso, however, that the Insurer will not be liable for the cost of the Builder completing its obligations under the contract including any obligation under a defects liability or maintenance period provision or other like provision of such contract. In other words, the Builder must complete the contract.
151 Thus the Proviso recognises and treats separately the obligation that the Builder has under the contract to rectify any defect under a defects liability or maintenance period provision or other like provision of such contract.
152 It can be seen therefore that, putting to one side the special conditions, Clauses B and C provide a measure of protection to the Builder over and above the obligations the Builder has to the Insured to complete the building contract. On this construction, any claim by the Insurer under its rights of subrogation against the Builder for damages for breach of the building contract made by the Insurer after the Builder had completed the building contract would fall within the protection provided by Clauses B and C.
153 We now turn to the special conditions applicable to Section 3. VMIA would have it that special condition 2(c) gives a right to the Insurer to direct the Builder to rectify defects at any time and in particular after the Builder has completed the building contract. If that were the case, then the Insurer could effectively avoid the operation of Clauses B and C by merely directing the Builder to rectify the defect the subject of a claim under the policy. Clauses B and C would be of little if any practical benefit to the Builder who took out the policy and paid the premium. As mentioned above, the provisions of Section 3 are not required by the 1988 Ministerial Order to protect the insured building owner or at all.
154 On VMIA's construction of Section 3 the power of the Insurer to direct the builder to rectify defects in the building at any time at any cost has been inserted as a benefit for the Insurer even though it has been included in the section providing rights for the Builder.
155 Under Section 3, rectification of defects can occur by agreement between the Builder and the Insurer under Clause C(1) or rectification can occur under the Proviso to Clause C under the Builder's obligations under the building contract. The question I need to answer is do the special conditions impose other circumstances where rectification may occur, such as by direction of the Insurer at any time where a claim has been accepted by the Insurer from a building owner covered by the policy, or, are the circumstances for rectification or completion limited to those previously referred to in Section 3?
156 Special condition (1) confirms that Section 3 is not subject to the 1998 Ministerial Order. Special condition (2) deals with the rectification provided for in each of paragraphs (a), (b) and (c) and probably in (d) as well.
157 Under paragraph (a), the Builder must provide the Insurer with reasonable access to the relevant building site for the purpose of inspection and/or rectification or completion of domestic building works. In my view, this provision envisages that the Insurer is to have access to the building site (not the Builder) for the purpose of inspection or rectification.
158 Under paragraph (b), the Builder must not undertake or cause any rectification works without the Insurer's prior written approval. Under Clause C, the rectification requires the Insurer's written approval. In my opinion, paragraph (b) provides that for the Builder to obtain the benefit of the Builder's right under Section 3, it must have the Insurer's written approval (not instruction) before carrying out rectification work either under the agreement with the Insurer or under the Builder's obligations under the building contract as referred to in the Proviso.
159 Under paragraph (c), the Builder must promptly comply with the Insurer's reasonable directions in relation to the completion or rectification or any work under the Major Domestic Building Contract. If the words 'under the Major Domestic Building Contract' qualify the words 'completion or rectification' then the directions of the Insurer can only relate to the work required by the building contract. If those words only qualify the word 'work' the issue remains whether the 'completion or rectification' is unlimited or whether the 'completion or rectification' is limited to the work previously referred to in Section 3. As mentioned above, the completion or rectification work previously referred to in Section 3 is the completion or rectification work agreed with the Insurer or the completion or rectification work required under the building contract itself.
160 Dura accepts that the Builder is not entitled to be paid to rectify its own defective work while the contract is on foot. In other words, the Insurer is not obliged to pay the Builder to finish its contract. Dura agrees that the Builder must finish its contract and finish it properly so that if there are defective works during the construction or during the defects liability period the Builder can not require the Insurer to pay it to rectify the defects.[79]
161 In my opinion, the sensible and reasonable businesslike construction of the words 'completion or rectification' in the context of the policy, and bearing in mind its purpose, is to limit them to the completion or rectification previously referred to in Section 3. In my opinion, to give them the meaning sought by VMIA and accepted by the Tribunal gives rise to at least two irrational and illogical consequences.
162 First, that construction would effectively deny the Builder any benefit of 'the Builder's rights under Section 3.' In my opinion, that is commercially irrational as section 3 is described a containing 'Builder's rights' (see special condition (5) and (6)). More importantly, the Insurer would obtain a significant right that was not required by the 1998 Ministerial Order in a clause purporting to give the Builder rights under the policy even though the Builder is not the Insured.
163 In my opinion, one would expect a contract of insurance to expressly and independently state that the Insurer may direct the Builder to rectify defects at any time after the Insurer accepted a claim and notwithstanding the rights of the Builder under Section 3. One would not expect such a significant power to be included in a special condition that circumscribes the circumstances in which a Builder may obtain a right under the contract of insurance where the Builder is not the Insured but is the person that takes out the insurance and pays the premium. If the Builder did not seek to avail itself of its rights under Section 3, VMIA would have it that the special condition still is enlivened.
164 In my opinion, VMIA's and the Tribunal's construction does not give a commercial and sensible construction to the policy. Rather, it would convert Section 3 into a hollow and specious representation that the Builder is obtaining some worthwhile and valuable right when in fact, hidden in the fine print of the special conditions, is a clause that deprives the policy of any real benefit to the Builder at all.
165 The policy was issued in a competitive market for the custom of builders. As Lord Wilberforce said in Reardon Smith Line Ltd v Hansen-Tangen[80] 'regard should be had to the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.'
166 As was acknowledged by Mr Stinton, FAI were seeking to attract the custom of builders with this policy. Section 3 was an entirely optional and additional section. It was not required by the 1998 Ministerial Order. It is unlikely that it was included in the policy by FAI as a benefit to building owner. It purports to give the Builder rights. Mr Stinton conceded that the policy was drawn to give the policy a 'marketing distinction' to the Builder.[81] I consider the construction that I find is the proper construction of Section 3 is consistent with giving the policy a genuine marketing distinction of material benefit to a Builder. On VMIA's construction there would be no marketing distinction of any material benefit to the Builder.
167 The learned Deputy President said that the literal construction of special condition 2(c) gave rise to a harmonious whole between it and Clause C. For the reasons, I have given I disagree. In my opinion, the literal interpretation of special condition of clause 2(c) would deprive Clause C of any practical effect.
168 The Deputy President said that Clause A created a general right of subrogation in favour of the FAI and against the Builder. He said this was scarcely an extra benefit.[82] In my respectful opinion, the Deputy President's observation overlooked the common law right that FAI had to subrogation. Section 3 brought that right forward to cover an acceptance of a claim as opposed to payment of a claim by FAI. Bringing forward the right of subrogation enabled the rectification procedure provided for under Section 3 to work. If the common law right had not been extended, the Insurer could not have given the release that it did based on the rectification being carried out. At common law, the right to subrogation required payment by the Insurer. In my opinion, the extension of the right of subrogation was a necessary part of the scheme to grant substantive 'capped' liability protection to the Builder.
169 VMIA contends that the provision about subrogation was included because of 'some of the arcane rules about subrogation.'[83] I do not agree. I consider that Clause A was an essential part of the scheme to provide protection to the Builder.
170 VMIA contends that the scheme under the 1998 Ministerial Order was not designed to protect the Builder from the consequence of its poor workmanship. This might be so. But Section 3 was not part of the scheme promulgated under the 1998 Ministerial Order. Section 3 provided for Builder's rights that were not dealt with in the scheme.
171 VMIA asserts that Clause C does have some work to do on its construction of special condition (2)(c). VMIA says that if an Insurer does not exercise its right to direct the Builder to perform rectification work and if the Builder indicates its willingness to undertake those rectifications, then there might be some works which fall within the limitation of Clause C, if they were the subject of agreement with the Insurer.
172 In my view, those circumstances would envisage an unusual Insurer. Those circumstances have the Insurer electing to have the rectification work done under Clause C at its own expense rather than directing the Builder to carry out the works at the Builder's expense. I would have thought the directors of the Insurer would, in accordance with their duties, insist on the affairs of the Insurer being conducted for what they considered was in the best interests of the company, and keeping the expenses of the Insurer to a minimum. VMIA envisages the Builder's rights being a gift within the discretion of the Insurer. If I may say so, that construction of Section 3 does not give Section 3 a very commercial or rational construction.
173 To decide the issue before me, I need only strictly find that the answer to question 3 is no. It is unnecessary for me to exhaustively construe the application of special condition (2)(c). I would think, however, that the Insurer could give the Builder reasonable directions in relation to rectification work carried out under Clause C. Also, I think that the Insurer may be able to give reasonable directions in relation to such work carried out by the Builder under the building contract if the Insurer has accepted liability to a claim of the building owner. Dura suggested for example, the Insurer may require an engineer's certificate or some such thing. I am not able to foresee all the possible circumstances where a direction might be considered reasonable.
174 Importantly for this case, however, I do not consider that Section 3 provides the basis for VMIA giving the directions pleaded.
175 Accordingly, I would allow the appeal on this question. I therefore order that the order of the Tribunal to preliminary question 3 be set aside and in lieu thereof the order be varied to 'no.'
176 In relation to the fourth, fifth and sixth preliminary questions, did the Tribunal err in finding that Dura was not the Insured and therefore could not rely on sections 13, 14 and 37 of the Insurance Contracts Act 1984 (Cth)?
177 Questions 8, 9 and 10 were all prefaced on the assumption that the answer to question 3 was yes. As the answer is no, there is no need to deal with the appeal to these questions. The questions should have been answered, 'no need to answer', and I will so order.
178 I remit the proceeding to the Tribunal for further hearing.
[1] By amendments to the Local Government Act 1958.
[3] Victorian Government Gazette S115, 1 October 1996.
[4] Victorian Government Gazette S122, 30 October 1998; exhibit AG 7.
[5] Part 6 Domestic Building (HIH) Indemnity Scheme of the House Contracts Guarantee Act 1987.
[8] [1999] VSCA 117. See also J Forrest J in Mulholland v Victorian Electoral Commission [2010] VSC 130, [15].
[10] Dura seeks leave to appeal on this question.
[15] Exhibit AG 2; CB 2.102.
[16] VMIA submissions of 9 February 2010 being tab 2 to exhibit DJN 1 to the affidavit of Darren John Noble of 16 February 2011 and transcript 26 of 24 November 2011.
[17] Exhibit AG 9; CB 2.160.
[23] Exhibit AG 5, CB 2.108-2.119.
[24] Exhibit AG 5 to the affidavit of Alison Jane Gawthorn of 9 February 2010; CB 2.108.
[26] Points of claim, particulars [6]; CB 2.019.
[27] Exhibit AG 6; CB 2.121.
[32] Cross-examination, Stinton, CB 5.962.
[35] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1981) 149 CLR 337, 352 (Mason J).
[36] Dura seeks leave to appeal on this question.
[37] Patrick Stevedoring v DPP [2012] VSC 31.
[38] Kane Constructions v Sopov [2005] VSC 237.
[39] Dura seeks leave to appeal on this question.
[40] Dura seeks leave to appeal on this question.
[42] Transcript 21 December 2010, 112 lines 21-24.
[43] Transcript 21 December 2010, 123-124.
[44] Exhibit RM 5, admitted into evidence as Exhibit 2. (Document (f) above).
[45] Transcript 28 November 2011, 106-107.
[46] There was some confusion over its description. The bundle of documents were marked as Exhibit 2, however they were also identified as RM5 which is the identifying notation from Dura's affidavit of Mr Martin, which was not relied on by Dura.
[47] Dura seeks leave to appeal on this question.
[49] Dura seeks leave to appeal on this question.
[52] [1959] HCA 8; (1958) 101 CLR 298. See also Twentieth Super Pace Nominees Pty Ltd v Australian Rail Track Corp Ltd [2006] VSC 333, [222]-[230] (Gillard J).
[55] Metcalf Crane Services Pty Ltd v Rathner [2011] VSC 195, [26]-[41].
[57] Dura has leave to appeal on ground 5.
[63] Dura seeks leave to appeal on this question.
[65] Dura has leave to appeal on this ground.
[70] McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579, [22] (Gleeson CJ).
[71] Manren Ltd v Royal & Sun Alliance Insurance Australia Ltd [2003] VSCA 59, [12] (Callaway JA).
[72] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, [40] (Gleeson CJ and Gummow, Hayne, Callinan and Heydon JJ);
[73] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, 461-462 [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.)
[74] [1982] HCA 24; (1982) 149 CLR 337 at 350.
[76] [2004] HCA 35; (2004) 218 CLR 451 at 462 [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.)
[77] McGillivray on Insurance Law, eleventh edition, Thomson Reuters, 2008, 22-002.
[79] Transcript 28 November 2011, 37-38.
[80] [1976] 1 WLR 989 at 995-996.
[81] Mr Stinton's affidavit of 19 July 2010, [11].
Dura (Australia) Constructions Pty Ltd
Victorian Managed Insurance Authority [2012] VSC 114
(1956) 94 CLR 470
(1981) 149 CLR 337
(1958) 101 CLR 298
(2000) 203 CLR 579
(2004) 219 CLR 165
(2004) 218 CLR 451
(1982) 149 CLR 337