FEDERAL COURT OF AUSTRALIA
Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493
ORDERS
DATE OF ORDER: | 19 October 2020 |
THE COURT ORDERS THAT:
1. The parties provide to the Associate to Justice Lee agreed short minutes of order reflecting these reasons (or, failing agreement, competing short minutes of order and submissions limited to two pages) within seven days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
LEE J:
1 The applicant in this proceeding, Icon Co (NSW) Pty Ltd (Icon), is a construction company, and one of a number of companies that comprise the “Icon Construction Group” (Icon Group).
2 In October 2015, Icon entered into a contract to design and build a 37-storey high rise mixed residential and commercial development known as the Opal Tower at Sydney Olympic Park (Opal Tower Contract). The Opal Tower comprises 392 residential apartments, retail and commercial spaces on the ground level and a three-storey underground car park (Project). On any view of it, it was a very substantial endeavour: the value of the Opal Tower Contract was $154,707,111 plus GST.
3 Building commenced on 16 November 2015 and “practical completion” occurred two days ahead of the contracted schedule, on 8 August 2018.
4 On the night before Christmas in 2018, things were stirring: major cracks were observed at the Opal Tower across three floors in certain wall panels, floor slabs and hobs (Incident). The Incident forced the newly moved-in residents to be evacuated. On Christmas Day, most residents were permitted to return to their apartments, however, those residents were re-evacuated two days later. Icon subsequently re-entered the site and undertook rectification works. Residents were progressively allowed to return to their flats throughout 2019.
5 Residents of the Opal Tower have made claims against Icon and a class action was commenced in the Supreme Court of New South Wales in July 2019 by certain lot owners of the Opal Tower against the Sydney Olympic Park Authority, which has filed a cross-claim against Icon (2019/00232749 Williamson v Sydney Olympic Park Authority). As at 28 February 2020, Icon had paid out in excess of $31 million as a result of the Incident, including approximately $17 million in property rectification costs, $8.5 million in alternative accommodation costs and $530,000 in legal fees associated with defending the class action.
6 Icon brings this proceeding against two insurers, the first respondent (Liberty) and the second respondent (QBE), with which it placed third party liability insurance policies through its broker, Austbrokers Countrywide (Austbrokers) in September 2015 and September 2018 respectively. The 2015/16 Liberty policy (Liberty Policy) was in place at the time of the commencement of the Opal Tower Contract. The QBE policy covered the period from 20 September 2018 to 31 December 2018 (QBE Policy). The policies were each placed with the insurers through a specialised construction underwriting agency, Chase Underwriting Pty Ltd (Chase).
7 Icon seeks declarations designed to progress its claims for indemnity against both Liberty and QBE as both insurers have denied indemnity.
8 As against Liberty, Icon seeks declarations to the effect that the Incident reflected or was the result of an “Occurrence” within the period of cover of the Liberty Policy. Icon advanced three claims, framed in the alternative, as to why that is so: first, that its notification to Liberty of the Project engaged a provision of the Liberty Policy providing for “run off” cover, thus allowing for the insurance to cover the 12 month defects liability period which followed the contractual time period for the Project, during which the Incident occurred (Run Off Claim); secondly, by operation of s 58 of the Insurance Contracts Act 1984 (Cth) (ICA), Liberty is precluded from denying indemnity for the period during which the Incident occurred (Statutory Extension of Coverage Claim); and thirdly, that the Liberty Policy should be rectified by the addition of an “endorsement” in terms that would entitle it to such cover (Rectification Claim).
9 As against QBE, Icon seeks declarations to the effect that the Incident reflected or was the result of an “Occurrence” in connexion with a “Product” of Icon within the meaning of the QBE Policy.
10 It is convenient first to set out the factual background to the proceeding, before identifying and then dealing with disputed factual matters and the legal issues for determination.
11 I have been greatly assisted by the parties’ joint preparation, in compliance with orders made in advance of the hearing, of a document setting out the agreed factual background (Agreed Facts). The findings that follow in this section are drawn largely from that document.
B.1 Dealings between Liberty and the Icon Group
12 Between at least 2012 and the end of 2018, Icon and the Icon Group engaged Austbrokers to act as their broker for the purpose of obtaining “Material Damage Contract Works” and “Third Party Liability” insurance for Icon and the Icon Group. The primary contact at Austbrokers was Mr Mark O’Reilly.
13 Between approximately June 2012 and July 2017, Chase was authorised to act as agent for Liberty in respect of, inter alia, the sale of third party liability insurance for the construction industry. In May 2016, Liberty and Chase executed two agency agreements, one for the period 1 June 2012 to 31 August 2015 (First Agency Agreement), and a second for the period 1 September 2015 to 1 September 2018 (Second Agency Agreement). The First and Second Agency Agreements attached policy wordings for both an annual third party liability policy and for a project specific third party liability policy.
14 Between September 2012 and September 2017, Icon and Liberty entered into several successive, and relevantly identical, 12 month contracts of third party liability insurance. As noted above, the Liberty Policy was the relevant annual policy to which Icon’s claims against Liberty are concerned, which identified the “Period of Insurance” as 20 September 2015 to 20 September 2016.
15 Icon did not deal directly with Liberty in relation to its insurance programme; all communications as to the policies were between Austbrokers and Chase. Within Liberty, the person with primary responsibility for Icon’s insurance programme was Mr Daniel Hingston. Mr Hingston was employed by Liberty first as a senior underwriter, and later as Assistant Vice President & Victorian Casualty Manager.
16 At the outset of the contractual dealing between Liberty and the Icon Group, in September 2012, Austbrokers, on behalf of Icon, issued Chase with a “quotation slip” seeking a quotation for both “contract works” and “liability” policies of insurance. Chase then forwarded the quotation slip to Liberty.
17 Shortly thereafter, Liberty sent an email to Chase confirming the rates which Chase could offer to Icon for annual third party liability insurance and Chase sent a quotation to Austbrokers in respect of both the “contract works” and “liability” policies of insurance. It was agreed that Chase was acting as agent of Liberty only in respect of the “liability” policy for which it provided a quotation. Chase then sent an email to Austbrokers attaching two separate policy wordings for a “contract works” policy and a “third party liability” policy and then, on 19 September 2012, Austbrokers emailed Chase to confirm that Icon had accepted the “terms”.
18 During the currency of the annual insurance policies, between September 2012 and September 2017, Austbrokers “notified” Chase, usually by email, of new construction projects in respect of which Icon sought third party liability insurance cover.
19 In respect of each construction project, Chase then usually provided Austbrokers with what was referred to as an “endorsement”, confirming that cover was in place in respect of each project notified. Such endorsements usually commenced with a statement substantially in the following terms:
IT IS HEREBY NOTED AND AGREED THAT THE ANNUAL THIRD PARTY LIABILITY FLOATER POLICY IS AMENDED TO INCLUDE THE FOLLOWING CONTRACT, WITH AMENDMENTS DETAILED HEREIN. ALL OTHER TERMS CONDITIONS AND LIMITATIONS APPLY AS PER POLICY.
20 The endorsement then contained various matters describing the project, including an “Estimated Project Period”.
21 From at least September 2013, and in respect of each subsequent annual policy, Icon paid a deposit premium which was then offset or deducted against the premium payable when projects were declared under the relevant annual policy. This was calculated and charged by reference to the full contract value of each project. Icon contends that this was the case from the outset of the first annual policy in 2012, but Liberty disputes this contention.
22 Chase always gave notice by letter pursuant to the ICA of the impending expiry of the annual contract works and third party liability policies with the Icon Group.
23 On 7 September 2015, in the customary manner by which the parties had previously conducted themselves, Austbrokers sent Chase an email attaching a quotation slip seeking terms for the renewal of the Icon Group’s annual “Material Damage Contract Works” and “Third Party Liability” insurance policies for the period 20 September 2015 to 20 September 2016.
24 On 16 September 2015, Chase sent Liberty an email, attaching Icon’s quotation slip, seeking approval for Chase to offer Icon third party liability cover on expiring terms.
25 On 17 September 2015, Mr Hingston sent an email in response to Chase stating that “I confirm agreement to continuation of expiring terms for the 2015-16 period”. Later that day, Chase sent Austbrokers an email attaching a renewal offer, for the period 20 September 2015 to 20 September 2016, for Icon’s annual third party liability insurance policy and for its annual contract works insurance policy. The renewal offer identified that Icon’s annual third party liability insurance policy would be provided by Liberty for that period.
26 On 18 September 2015, Austbrokers sent Chase an email attaching a “placing slip” to confirm the renewal of both policies for Icon for the period 20 September 2015 to 20 September 2016. Later that day, Chase sent an email to Austbrokers confirming Liberty’s cover for the annual third party liability insurance policy for that period, and the Liberty Policy came into effect.
27 The “Period of Insurance” is specified in the Schedule to the Liberty Policy as the period from 20 September 2015 4:00pm local standard time to 20 September 2016 4:00pm local standard time, “or any subsequent period for which the Insured has requested and the Insurer(s) has accepted renewal.”
28 Two conditions of the Liberty Policy are of especial importance to the determination of the issues in the proceeding. They are as follows:
8. Adjustment of Premium
The premium for this Policy is provisional (unless otherwise agreed) and is based on the estimated Turnover for the Period of Insurance. The Insured shall, as soon as practical after the expiry date of this Policy, declare to the Insurer(s) the Turnover during the preceding Period of Insurance.
An adjustment premium shall be determined by calculating the difference between the provisional premium and the sum of the agreed rate applied to the Turnover.
Notwithstanding the above, the maximum allowable return premium will be 25% of the provisional premium paid.
15. Run Off
Subject to written instructions from the Insured to the Insurer(s) prior to expiry of the Period of Insurance, this Policy will continue in full force and effect at terms and conditions prevailing immediately prior to expiry for all incomplete contracts as at date of expiry until completion of those contracts including any testing and/or defects liability and/or maintenance periods.
The Insured is required to provide the Insurer(s) with a list of contracts requiring Run Off and additional premium is to be calculated on expiring rates applied to value of works declared for completion of projects after expiry of the Period of Insurance.
B.3 Notification of the Project
29 The Opal Tower Contract provided for a defects liability period of 12 months after the date of practical completion, during which time Icon was required to rectify all defects. Clause 17 required Icon to maintain public liability insurance until the issue of the final certificate under the contract, which occurred at the later of various specified events, one of which was within 28 days of the expiry of the defects liability period.
30 On 2 November 2015, Mr O’Reilly of Austbrokers sent Chase an email notifying it that Icon had been awarded the Opal Tower Contract (Opal Declaration). Mr O’Reilly’s email provided particulars of the contract, relevantly including that: (a) the time period of the build was “notional start date 16th November 2015 to anticipated completion 10th August 2018”; (b) the Project had a defects liability period of 12 months; (c) the Project involved construction of 369 residential apartments over 34 storeys plus 3 levels of basement car parking; and (d) the cost value of the Project was $154,707,111.
31 Also on that day, Austbrokers sent Icon certificates of insurance, which stated the “Contract Works and Public & Products Liability” insurance had been arranged for the Project for the period of insurance from 16 November 2015 “to Practical Completion estimated at 10th of August 2018 plus 12 months maintenance period”.
32 On 24 November 2015, Chase sent an email to Liberty informing it that Austbrokers had notified it of the Project “which began on 16 November 2015 and is to be included under the annual (but paid in full now)”. Chase stated in that email that the “contract period” was “16th November 2015 to 10th August 2018” and that the “cost value of the project” was $154,707,111. Chase did not refer to the 12 month defects liability period in that email.
33 On 9 December 2015, Chase sent Austbrokers an email relevantly informing it that: (a) “cover” was in place for the Project “from 16th November 2015 and ending on 10th August 2018”; (b) that the base premium payable by the Icon Group for “Third Party Liability” insurance cover for the Project was calculated to be $92,050.73 (net) plus charges; (c) that “all other terms and conditions were as per the annual policy”: and (d) that an endorsement would be sent to Austbrokers for its records.
34 Chase again did not make mention in that email that cover was in place for the additional 12 month defects liability period.
35 On 22 December 2015, Mr Hingston signed an “endorsement” for the Project (Opal Endorsement) which relevantly stated that:
(a) IT IS HEREBY NOTED AND AGREED THAT THE ANNUAL THIRD PARTY LIABILITY FLOATER POLICY IS AMENDED TO INCLUDE THE FOLLOWING CONTRACT, WITH AMENDMENTS DETAILED HEREIN. ALL OTHER TERMS CONDITIONS AND LIMITATIONS APPLY AS PER POLICY.
(b) the “Estimated Project Period” was “16th November 2015 to 10th August 2018 at 4:00pm local standard time”; and
(c) the “Endorsement Premium Calculation” was based on the “Full Value of Works” of $154,707,111.
36 The Opal Endorsement was not provided to Austbrokers or Icon.
37 Although the third party liability policy that Icon entered into in the 2017/18 year (2017/18 Policy) is not directly in issue in that there is no claim made under that policy, it is appropriate to say something about it. The 2017/18 Policy was placed through Chase with a syndicate of underwriters at Lloyd’s rather than Liberty, and, as will become apparent later in these reasons, elements of its terms are said by Icon, for the purposes of the Rectification Claim, to reflect the true bargain it had struck with Liberty when it entered the Liberty Policy in September 2015.
38 The 2017/18 Policy wording included, for the first time since at least 20 September 2012, endorsement “TPL008 – Contracts Commencing” (Contracts Commencing Endorsement). The Contracts Commencing Endorsement made certain amendments to the policy wordings from previous years. It read as follows:
Endorsement – TPL008
The following Endorsement forms part of the Third Party Liability Policy Number: 438396
Contracts Commencing Amendment to Policy
It is hereby noted and agreed that this Policy is endorsed to include the following amendments:
(A) the Schedule is amended to include:
Construction Period
Maximum Construction Period 24 months any one Contract Including any testing and commissioning period
Maximum Maintenance/ Defects Liability Period 12 Months any one Contract
(B) The Insuring Clause is amended to read as follows:
The Insurer(s) agree to:
1. indemnify the Insured in respect of all amounts which the Insured shall become legally liable to pay in respect of:
(a) Personal Injury;
(b) Property Damage;
(c) interference with traffic or to property or the enjoyment of use thereof by obstruction, trespass, loss of amenities, nuisance,
1.1 happening during the Construction Period as a result of an Occurrence in connection with the Insured’s Business
1.2 happening during the Period of Insurance as a result of an Occurrence in connection with the Insured’s Products Liability and/or Completed Operations
(C) Condition 8 (Adjustment of Premium) is deleted and replaced by:
8. Adjustment of Premium
The premium for this Policy is provisional and is based on the estimated value of works to commence during the Period of Insurance. The Insured shall, as soon as practical after the expiry date of this Policy, declare to the Insurer(s) the actual total value of works for all contracts that commenced during the Period of Insurance.
An adjustment premium shall be determined by determining the difference between the provisional premium and the sum of the agreed rate applied to the actual total value of works commenced during the Period of Insurance. The adjustment premium paid to the Insurer(s) or refunded by the Insured(s) as the case may be.
Notwithstanding the above, the maximum allowable return premium will be 25% of the provisional premium paid.
(D) Condition 15 (Run Off Cover) is amended to read:
15. Run Off
This Policy will continue in full force and effect at terms and conditions prevailing immediately prior to expiry for all incomplete contracts as at date of expiry until completion of those contracts including any testing and/or defects liability and/or maintenance periods subject to the Maximum Construction Period noted in the Schedule.
On expiry of the Period of Insurance the Insured is required to provide the lnsurer(s) with a list of all Insured Contracts that commenced during the period of insurance and additional premium is to be calculated as per Condition 8 (Adjustment of Premium). Any contracts not declared to Insurers will not be covered by this Policy.
(E) The following definition is deleted in its entirety
Turnover
Turnover is defined as the total value of work completed during the preceding twelve months period for the Business and/or Activities of the Insured to which this Policy applies, including the value of principals supplied materials where appropriate
In all other respects this Policy remains unaltered.
39 In September 2018, Icon entered into the QBE Policy, by which it renewed its third party liability insurance through Chase for three months from 20 September 2018 to 31 December 2018. The QBE Policy was written by a syndicate of underwriters at Lloyd’s (of which QBE is a member), had the same policy wording as the 2017/18 Policy, and included the Contracts Commencing Endorsement.
B.6 Construction and completion of the Opal Tower
40 Construction of the Opal Tower commenced on 16 November 2015, and was organised into different stages or tasks. Practical completion of the Project occurred on 8 August 2018, which triggered the commencement of the 12 month defects liability period. As I mentioned at the outset, the Incident occurred on 24 December 2018, which, obviously enough, was during the defects liability period but after the date of practical completion.
41 I turn now to the factual and legal issues in contest between the parties.
C FACTUAL AND LEGAL ISSUES FOR DETERMINATION
42 In advance of the trial, the parties provided the Court with an agreed list of contested factual and legal issues, which were as follows:
PRINCIPAL CONTESTED FACTS IN ISSUE
Claim against Liberty
Run Off Claim
1. Did Icon comply with the terms of Condition 15 of the 2015/16 Liberty TPL Policy in respect of the Opal Tower project?
2. How was the premium for the 2015/16 Liberty TPL Policy calculated, and on what basis?
Statutory Extension of Coverage Claim
3. Was there a project-specific insurance policy, separate from the 2015/16 Liberty TPL Policy, for the Opal Tower project?
4. If the answer to questions 3 is yes, was that project-specific insurance policy cover of a kind that it is usual to renew or for the renewal of which it is usual to negotiate?
5. If the answer to question 4 is yes, did Liberty give Icon notice in writing, no later than 14 days before the date on which the project-specific cover provided for the Opal Tower project was about to expire, of the date on which and the time at which that cover would expire and whether Liberty was prepared to negotiate or renew that cover?
6. If the answer to question 5 is no, did Icon obtain from some other insurer insurance cover to replace the project-specific policy provided by Liberty in respect of the Opal Tower project prior to expiry of the project-specific insurance policy provided by Liberty?
Rectification Claim
7. Was it the intention of:
(a) Icon;
(b) Austbrokers;
(c) Chase Underwriting; and/or
(d) Liberty,
at the time of commencement of the 2015/16 Liberty TPL Policy, that the 2015/16 Liberty TPL Policy would apply during the construction and defects liability period for any projects:
(i) commenced by Icon or the Icon Group during the period of insurance of the 2015/16 Liberty TPL Policy;
(ii) declared by the Icon Group to Liberty; and
(iii) for which an additional upfront premium was calculated by Chase (as agent for Liberty) based on the total project value and paid by the Icon Group.
8. Was a common intention to the effect set out in question 7(i) – (iii) communicated between Icon/Austbrokers and Chase Underwriting/Liberty?
9. Was a common intention to the effect set out in question 7(i) – (iii) not reflected in the written terms of the Liberty 2015/16 Annual TPL Policy?
10. Did the Contracts Commencing Endorsement, which was introduced into the 2017/18 Chase TPL Policy Wording, reflect the common intention of Icon/Austbrokers and Chase Underwriting/Liberty at the time of commencement of the 2015/16 Liberty TPL Policy?
CONTESTED LEGAL ISSUES
Claim against Liberty
Run Off Claim
11. What was the legal effect of Icon “declaring” the Opal Tower project to Liberty and what was the period of insurance obtained in respect of the Opal Tower project as a consequence?
12. On the proper construction of Condition 15 of the 2015/16 Liberty TPL Policy, did Icon and the Icon Group obtain run off insurance cover from Liberty for the Opal Tower with the consequence that the terms and conditions of the Liberty 2015/16 Annual TPL Policy continued to apply to the Opal Tower until completion of the Defects Liability Period on 8 August 2019?
13. Did the parties “otherwise agree” to calculate premiums payable under the 2015/16 Liberty Policy pursuant to Condition 8 of that policy as alleged by Liberty in paragraph 13 of its defence?
14. If the answer to question 13 is “no”, would the effect of the 2015/2016 Liberty TPL Policy be that, but for s. 54(1) of the Insurance Contracts Act 1984 (Cth) (ICA), Liberty may refuse to pay the claim made by Icon by reason of Icon’s failure to expressly state that it was seeking “run off” cover, being an act or omission that occurred after the 2015/2016 Liberty TPL Policy was entered into?
15. If the answer to question 15 is “yes”, is Liberty prohibited from relying on any such act or omission by reason of s. 54(1) of the ICA?
Statutory Extension of Coverage Claim
16. Did Liberty have an obligation under s.58 of the ICA to give Icon notice in writing, no later than 14 days before the date on which any project-specific insurance policy provided for the Opal Tower project was about to expire, of the date on which and the time at which that cover would expire and whether Liberty was prepared to negotiate or renew that cover?
17. If the answer to question 16 is yes, did Liberty fail to comply with that obligation?
18. If the answer to question 17 is yes, pursuant to s. 58(3) of the ICA, had the project-specific insurance policy provided by Liberty for the Opal Tower project not expired as at the time of the Incident on 24 December 2018?
Rectification Claim
19. For the purpose of rectification, which entities’ conduct and state of mind are relevant?
20. Is the conduct and state of mind of Austbrokers relevant to determining Icon’s intention?
21. Is the conduct and state of mind of Chase relevant to determining Liberty’s intention?
22. Should the 2015/16 Liberty TPL Policy be rectified by adding the Contracts Commencing Endorsement?
Declarations Sought
23. Given the nature of the relief sought in the Further Amended Originating Application and the issues raised in the Further Amended Statement of Claim, does the Court have the power to grant declarations in the terms sought, alternatively should that power be exercised as a matter of discretion?
Claim against QBE
24. Is the Opal Tower, the component parts pleaded, and/or the concrete structure of the Opal Tower (comprising columns, slabs, precast panels, reinforced concrete walls and hob beams) a “Product”, as that term is defined in the QBE Policy?
D.1 Further factual background: the dealings between the parties
43 As I have noted (at [8]), against Liberty Icon makes the Run Off Claim, the Statutory Extension of Coverage Claim and the Rectification Claim. Much of the evidence adduced, and cross-examined upon, related to the Rectification Claim. That is because, as will become apparent, that evidence was sought to be relied upon in support of the parties’ contentions as to whether or not there was a common intention that the Liberty Policy was to apply on a “contracts commencing” basis and thus the cover was in place during the defects liability period.
44 However, as I will detail more fully below, some of that evidence is relevant, and admissible, in respect of the surrounding circumstances of the Run Off Claim. Prior to doing so, however, it is convenient to provide a further summary of the market in which the parties operated, and the dealings between them. I will later make specific findings of fact with respect to the principal witnesses when considering the merits of the Rectification Claim.
Evidence of the construction insurance market
45 Evidence about the construction insurance market was given by Mr Neil Bovington, who is an insurance broker and insurance adviser with over 20 years’ experience in the construction insurance sector in Australia and the United Kingdom. Mr Bovington explained that public and products liability insurance for the construction industry, when purchased on an annual basis by contractors and builders, is purchased in one of two ways, either: (a) on a “contracts commencing” basis (contracts commencing policies); or (b) on a “turnover” basis (turnover policies). Contracts commencing policies were said to provide cover for the project until works are completed plus the relevant defects liability period, even if this occurs after the annual period of insurance has expired. Turnover policies cover projects which are commenced or are on hand during the annual period of insurance (including those projects which are complete and in the defects liability period) but only during the annual period of the insurance policy. Mr Bovington observed that insurance professionals who are involved in the construction insurance market in Australia would have been well aware that contractors are required, under their construction contracts, to maintain public and products liability insurance during the construction and defects liability period.
46 Mr Bovington’s evidence was relevantly unchallenged by Liberty, and I accept it. Indeed, the parties expressly agreed with the market-based circumstances prevailing at the relevant time, to the extent they were relevant. Those circumstances included that most commercial construction contracts are based upon standard form contracts prepared by Standards Australia, and that those contracts require the contractor to obtain and maintain public liability insurance for the term of the contract, including any defects liability period. The parties were also ad idem that contracts commencing policies “usually” required the payment of a premium based on the total contract value of contracts commenced during the annual policy period, and cover was provided for the duration of those contracts even if that duration extended beyond the end of that annual policy period, including any defects liability period.
The parties’ use of endorsements
47 As will be explained, there was a dispute between Icon and Liberty as to the relevance of the Opal Tower Endorsement to construing the Liberty Policy. Accordingly, it is necessary to make findings as to the parties’ use of such endorsements generally. As I have outlined above (at [18]–[22]), it was agreed that since the commencement of the parties’ dealings, Icon, through Austbrokers, declared to Chase, as agent for Liberty, each of its new construction projects commenced during the policy period, notifying it of the relevant contractual details. What then occurred is that Chase usually provided Austbrokers with an “endorsement” to the policy, which noted that the policy was “amended” to include the relevant building contract, and the details of that contract were then set out. A premium was then calculated and charged by reference to the full contract value of each project declared to Liberty, which was set out in the relevant endorsement. Although there was some dispute as to whether this method of calculation commenced in 2012 or 2013, it does not matter for present purposes because the premium was calculated and paid upfront upon declaration of the projects to Chase during the period of the Liberty Policy.
48 It was agreed that there were numerous endorsements prepared by Chase during the course of the parties’ dealing. These endorsements, 18 of which were in evidence, included endorsements on two projects declared to Liberty immediately prior to the Project and were in substantially the same form (save that each identified a different project, named different additional insureds, identified differing project periods and included a different premium payable).
49 The Opal Tower Endorsement was signed by Mr Hingston for the Project on 22 December 2015, but it was agreed that that endorsement was never provided to Icon. However, it will be recalled that on 9 December 2015, it was agreed that Chase, in response to the Opal Declaration on 2 November 2015, had emailed Austbrokers relevantly informing it that cover was in place “from 16th November 2015 to 10th August 2018” and that an endorsement would be sent to Icon for its records. Neither this email, nor the endorsement subsequently executed by Mr Hingston, referred to the defects liability period.
50 Notwithstanding that the parties framed the issues for determination in relation to this claim by reference to the series of questions set out above (at [42]), the parties’ submissions on each question oftentimes overlapped and it is convenient to reformulate the issues in a somewhat simpler way.
51 In relation to the Run Off Claim, broadly speaking, the following two issues fall for determination:
(1) Did the Opal Declaration meet the requirements of Condition 15?
(2) If Icon did not comply with Condition 15 by reason of an omission to use some precise form of wording, is Liberty precluded from denying indemnity on that basis by operation of s 54 of the ICA?
E.1 Did the Opal Declaration meet the requirements of Condition 15?
52 Condition 15 has been set out at [28] above. The question arises: what did the parties objectively intend Condition 15 to require?
53 It is trite to observe that the process of construing insurance contracts is governed by ordinary principles of contractual interpretation: Australian Casualty Co Ltd v Federico (1985) 160 CLR 513 (at 520 per Gibbs CJ); McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 (at 589 [22] per Gleeson CJ); Todd v Alterra at Lloyds Ltd [2016] FCAFC 15; (2016) 239 FCR 12 (at 22 [42] per Allsop CJ and Gleeson J). Thus, that process is as was stated by the High Court in Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 (at 656–7 [35] per French CJ, Hayne, Crennan and Kiefel JJ).
54 Before embarking upon the exercise of construction, however, it is well to tarry briefly to consider two related issues: first, the extent to which it is permissible that I have regard to extrinsic evidence in construing the Liberty Policy; and secondly, should I decide to have regard to such evidence, to what end that evidence may be put.
55 As to the first issue, it is well established that surrounding circumstances known to the parties are one of the elements required to be considered in the construction exercise. However, resort to evidence of those circumstances is confined. The classic authority for that proposition is the “true rule” as stated by Mason J (Stephen and Wilson JJ concurring) in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 were his Honour relevantly said (at 352) that “evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning”.
56 During the course of oral closing submissions, in response to my request for assistance on the issue of how the parties suggested I should deal, in the construction exercise, with the great swathes of evidence adduced by both parties, Senior Counsel for Icon suggested that the presence of ambiguity itself is not a threshold that must be met before resort may be had to such evidence. It was said that the Court is able to have regard to extrinsic material in aid of assessing whether there is ambiguity in a contractual provision. That submission was not developed by either party, but it is necessary that I consider it. That is because, although I have determined, as I will explain, that Condition 15 is ambiguous and that I should consider some of that extrinsic material, should I be wrong on that point, my regard to such materials may be in issue on any appeal.
57 There has been lively debate as to whether the requirement for ambiguity expressed by the “true rule” remains good law: see, eg, Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 (at 10–13 [45]–[51] per Weinberg J); Franklins Pty Ltd v Metcash Trading Pty Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 (at 616–8 [14]–[18] per Allsop P, at 622–3 [49] per Giles JA, and at 678 [305] per Campbell JA); MBF Investments Pty Ltd v Nolan [2011] VSCA 114; (2011) 5 BFRA 586 (at 637–8 [194]–[202] per Neave, Redlich and Weinberg JJA); Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1 (at 2–3 [3]–[5] per Gummow, Heydon and Bell JJ); Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633 (at 653–6 [71]–[86] per Leeming JA, Ward and Emmett JJA agreeing); Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548; Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; see also Prince T, “Defending Orthodoxy: Codelfa and Ambiguity” (2015) 89 ALJ 491.
58 Much of that debate turns upon whether resort may be had to extrinsic material in the absence of ambiguity. A subsidiary and related issue is whether, as Icon submitted, to ascertain whether such ambiguity exists, such resort may be had. The core of the argument in favour of that position is that statements in High Court authority following Codelfa, most recently from the passage of French CJ, Hayne, Crennan and Kiefel JJ in Woodside (at 656–7 [35]), adopted a test that permitted such resort. At that passage their Honours said that the “not unfamiliar” approach to determining the meaning of the terms of a commercial contract by what a reasonable businessperson would have understood those terms to mean, will “require consideration of … the surrounding circumstances known” to the parties. That language has been described as “mandatory” and must not have been “chosen lightly”: Mainteck (at 563 [71] per Leeming JA). Earlier High Court authority post-dating Codelfa has also been relied upon in an attempt to demonstrate that ambiguity is no longer a threshold that must be met, including passages in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 (at 188 [11] per Gleeson CJ, Gummow and Hayne JJ), Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 (at 461 [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530 (at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ), Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 (at 179 [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) and in International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151 (at 160 [8] per Gleeson CJ, and at 174 [53] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ).
59 As Steward J (Griffiths and Derrington JJ agreeing) recently observed in Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226 (at [28]–[31]), a number of decisions of the New South Wales Court of Appeal and of the Full Court of this Court have opined that those High Court decisions mean evidence of surrounding circumstances is admissible in the absence of ambiguity; see, eg, Franklins (at 616–8 [14]–[18] per Allsop P) and Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; (2014) 314 ALR 166 (at 174–5 [37] and [40] per Allsop CJ, Siopis and Flick JJ).
60 Much of this debate risks descending into semantics but to the extent it matters, I do not consider that anything that has been said in those High Court decisions post-dating Codelfa has had the effect of weakening or abandoning the “true rule”. Of course I am bound by what the High Court has said, not by another court’s interpretation of what it has said; such interpretations are but a guide to the meaning of that language: Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 (at 631 [98] per Leeming JA); Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; (2019) 100 NSWLR 155 (at 210 [239(3)] per Leeming JA, Bell P and Gleeson JA agreeing); Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258 (at 296–7 [167]–[170] per Bathurst CJ, Beazley P agreeing, and at 308–9 [237]–[241] per Leeming JA); Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421 (at 457 [149] per Edelman J, Besanko J agreeing); Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 (at 595–6 [132]–[133] per Redlich, Santamaria and McLeish JJA). If one has regard to the summary of the authorities in Heydon on Contract (Lawbook Co, 2019) (see especially 379–90 [9.1060]–[9.1200]), it seems to me the preferable view is that the “true rule” remains as Mason J stated it in Codelfa.
61 Hence, I proceed on the basis that it is only permissible for me to have regard to extrinsic material going to the surrounding circumstances if I find ambiguity in the Liberty Policy. As will be explained, I have determined that Condition 15 is ambiguous, and as such I have had regard to certain (but not all) aspects of the evidence adduced going to the surrounding circumstances.
62 As to the second issue, to what end any extrinsic evidence received may be put, in circumstances where a rectification claim is advanced in the same action as a contract claim, it is well to remember the relevant inquiry in each claim. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85 (at 117 [104]), Gageler, Nettle and Gordon JJ stated that the inquiry relevant to a rectification suit “may be approached by asking – what was the actual or true common intention of the parties?” That remark cited passages of the decision of Tobias JA (with whom Mason P and Campbell JA agreed) in Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 (at 642 [182], [185]), a decision to which I will return below. In that case, Campbell JA (at 665 [261], with whom Tobias JA relevantly agreed) emphasised that although the Court’s task in both construction and rectification is to ascertain the common intention of the parties to the contract, that expression “masks two quite different concepts”. After setting out the orthodox principles of contractual construction (at 655–7 [262]–[266]), his Honour observed (at 657 [269]):
One way in which it can be seen that it is subjective intention that matters for rectification, concerns the evidence admissible in a rectification suit. Notwithstanding that the contract that it is sought to rectify is in writing, and notwithstanding the common law rule that parol evidence is not admissible to contradict a written agreement, parol evidence is receivable, in an action seeking rectification, to establish what was the intention of each of the parties to the contract.
(Citations omitted).
63 Conversely, in respect of the construction exercise, the observations of French CJ in Simic (at 95 [18]) repay attention:
At a conceptual level, construction and rectification of a contract are different processes. The first involves determination of the meaning of the words of the contract defined by reference to its text, context and purpose. Resort to extrinsic circumstances and things external to the contract may be necessary to identify its purpose and in determining the proper construction where there is a constructional choice. The question for constructional purposes is not about the real intentions of the parties, not what the parties meant to say, but what they actually said.
(Citations omitted).
64 Hence I must approach much of the evidence adduced by the parties on the basis that it is, on the whole, irrelevant to the disposition of the construction of the Liberty Policy, directed as it was to establishing the common intentions of the parties for the purposes of the Rectification Claim.
The Liberty Policy in its terms
65 Although somewhat clumsily drafted, on its face, Condition 15 contains four aspects that should be noted: first, if run off cover is obtained, the cover provided will continue past the expiry date of the Liberty Policy (being 4pm on 20 September 2016), in its then current form, for “all” incomplete contracts until their completion, including the defects, testing and/or maintenance liability periods in place for those contracts; secondly, is the requirement for “written instructions” to obtain that cover and the requirement in the second paragraph whereby “[t]he Insured is required to provide the Insurer(s) with a list of contracts requiring Run Off”; thirdly is that those instructions must be provided “prior to the expiry of the Period of Insurance” (again, being 4pm on 20 September 2016) and no further temporal element is specified; and fourthly, the “additional premium” is to be calculated on “expiring rates” applied to the value of works “declared” that are to be completed after the period of insurance.
66 Icon’s principal case was that Condition 15, properly construed, only contains two requirements: first, the requirement for “written instructions” prior to expiry identifying “contracts requiring Run Off”; and secondly, payment of a premium “calculated on expiring rates applied to the value of works declared for completion of projects after expiry of the Period of Insurance”. Icon contends that it complied with both requirements. It says it met the first requirement when Austbrokers sent Chase the Opal Declaration on 2 November 2015 (as set out at [30] above), which informed Liberty that Icon sought cover for the Project which would not be completed prior to the expiry of the Liberty Policy. As to the second requirement, Icon said this was met by its payment of a premium to Liberty for cover for the Project calculated by reference to the total value of the Opal Tower Contract (including works to be completed after the expiry of the Liberty Policy).
67 Liberty’s position starts from the premise that no question as to “compliance” with Condition 15 arises for consideration because there was no question of seeking or needing run off cover for the Project. Its principal case was that, instead, when proper regard is had to the operation of the terms and conditions of the Liberty Policy, and the conduct of the parties in arranging endorsements, no issue of run off cover ever arose. On its case, the critical issue of interpretation is not the construction of Condition 15, but the meaning of the term “Estimated Project Period” in the Opal Tower Endorsement, which period ended on 10 August 2018.
68 As to the text of the Liberty Policy, it is first noteworthy that the terms of the first paragraph of Condition 15 appear straightforward. As I have noted, although the statement “subject to written instructions from the insured to the insurer” is somewhat unclear, it is given content by the words in the second paragraph. If the requirements of the text of that clause up to that point alone were to be determinative, on a literal reading, Icon would not comply with the clause unless it provided a “list” of contracts requiring run off, which it was agreed it did not. Liberty contended for such a reading, submitting that this “list” contemplates a single notification of all projects requiring run off cover. The submission was developed by reference to an attack on Icon’s interpretation of the clause, being that the only temporal limitation on the notification was that it occur “prior to expiry of the Period of Insurance”. Liberty said that such a broad construction would produce the result that it is possible to acquire run off cover even before the relevant annual policy took effect and, further, before a relevant project had even commenced. It was asserted that such a reading was “patently uncommercial”. Accordingly, it said that such a notification, “at the earliest, must occur once Icon knows with a degree of certainty all of the projects which are incomplete during the relevant policy period and for which it decides it wishes to seek run off cover”, which was said to be shortly before the expiration of the annual period of insurance.
69 I do not find these submissions persuasive. I am bound to give the Liberty Policy a businesslike construction on the assumption that the parties intended to produce a commercial result: Woodside (at 657 [35] per French CJ, Hayne, Crennan and Kiefel JJ); Mount Bruce (at 116–7 [47]–[49] per French CJ, Nettle and Gordon JJ). Although at first glance it might appear odd that Icon could acquire run off cover before the relevant annual policy took effect, or before a relevant project had even commenced, it does not necessarily follow that, should the parties have adopted the commercial expedient of ensuring that projects “declared” to Liberty during the period of insurance were so declared for the purposes of obtaining run off cover, such declarations would have been ineffectual to obtain that cover. Such declarations would still have been written instructions, would have been provided prior to the expiry of the Liberty Policy, and would have been, after accumulation, a “list” of such contracts.
70 The nature and effect of the parties’ adoption of such declarations, however, and the endorsements provided to effect such declarations, was the heart of the issue. This principal matter is one of context and surrounding circumstances, but staying with the text for present purposes, clarity as to what Condition 15 requires is found in the other important requirement of the clause, being the calculation of “additional premium”.
71 That term, of course, cannot be construed in isolation. The whole of the policy has to be considered: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 (at 109 per Gibbs J). The “additional premium” referred to in Condition 15 was to be calculated “on expiring rates applied to value of works declared for completion of projects after expiry of the Period of Insurance”. That method of calculation for the additional premium is at odds with the way in which the Liberty Policy, on its face, determined that the premium for the policy itself was to be calculated.
72 It is first to be noticed that there was, in fact, no stipulated premium set out in the Liberty Policy. In the Schedule under the heading “Premium” were simply the words “As Agreed”. The next mention of premium is that contained in Condition 8, titled “Adjustment of Premium”. I have set out Condition 8 at [28] above. The premium is said to be “provisional (unless otherwise agreed) and is based on the estimated Turnover for the Period of Insurance” (emphasis added). Icon was obliged under this condition to declare its turnover as soon as practical after the expiry date for the preceding period of insurance. “Turnover” is defined as follows:
[T]he total value of work completed during the preceding twelve months period for the lnsured’s Business to which this Policy applies, including the value of principals supplied materials where appropriate [sic].
73 After such a declaration of turnover, an “adjustment premium” was to be calculated as the difference between the provisional premium and the sum of the “agreed rate”. It is clear, therefore, that what that condition contemplated was that the final premium to be paid under the Liberty Policy was incapable of ascertainment until after the period of insurance. However, as was agreed between the parties, Icon “declared” each of their contracts at or about the time of their commencement, and the premium paid by it was calculated by reference first to a deposit premium which was then offset or deducted against the premium payable when projects were declared. This agreed position supports the conclusion that the parties did in fact “otherwise agree” to determine the premium payable otherwise than pursuant to Condition 8. Indeed, Icon expressly admitted in its reply that the parties agreed that the premium payable for the Liberty Policy would not be calculated in accordance with that condition.
74 In such circumstances, there exists an ambiguity which necessitates an examination of some of the extrinsic materials. The parties’ express agreement that Condition 8 was not to apply, and their dispute as to how, instead, the premium for the policy was to be calculated creates a difficulty in ascertaining, with precision, what “expiring rates” any such “additional premium” was to be additional to for the purposes of Condition 15.
Extrinsic materials of surrounding circumstances
75 It must first be recalled that admissibility is limited to ascertaining the surrounding circumstances known to the parties: Woodside (at 656–7 [35] per French CJ, Hayne, Crennan and Kiefel JJ); Codelfa (at 352 per Mason J). The reason for this restriction was explained by Allsop P (as his Honour then was) in QBE Insurance Australia Ltd v Vasic [2010] NSWCA 166 (at [22], Giles and Macfarlan JJA agreeing):
To permit, under the guise of the reasonable person, background facts known only to one person to be attributed to the reasonable person would tend to re-introduce the subjective understanding of one party by permitting or requiring the contract to be interpreted by reference to one party’s knowledge only.
76 The evidence of the surrounding circumstances relevant to the disposition of the Run Off Claim concerned: (a) the nature of the construction insurance market; (b) the parties’ conduct in arranging endorsements to the Liberty Policy; and (c) the calculation of premium.
The construction insurance market
77 Given my finding’s based upon Mr Bovington’s evidence, there is no reason to doubt that a reasonable person in the position of both parties during the relevant period would be aware of the features of the types of policies of insurance to which Mr Bovington referred. The question, however, is whether this assists in the construction contended for by Icon on its Run Off Claim.
78 Icon sought to rely upon this evidence in support of its contention that the parties objectively intended that the Liberty Policy was to operate as a contracts commencing policy, that such a policy was intended to cover the defects liability period, and that the machinery for enabling that cover to occur was Condition 15. Support for this contention was sought from prior policies of insurance between the parties and renewal quotations which were in evidence, and the evidence of Mr Hingston and Mr O’Reilly, which showed that Liberty agreed that it would automatically cover projects commenced by Icon with a “maximum construction period” of up to 36 months for any one project, and that such agreement was consistent with the Liberty Policy being a contracts commencing policy. I will deal with the evidence as to attribution of knowledge and intention in detail when considering the Rectification Claim.
79 The essence of Icon’s argument on the assistance to be gleaned from these materials is that, since the Liberty Policy and the parties’ conduct bear the hallmarks of a contracts commencing policy, commercially sensible parties in the position of Icon and Liberty would have expected that the Liberty Policy covered Icon during the defects liability period. Further, it was said that a commercially sensible party in Icon’s position is most unlikely to have bought cover that placed it in breach of all of its building contracts. Equally, a commercially sensible party in Liberty’s position is most unlikely to have sought to offer a product for sale that did not meet the uniform contractual requirements of its insured customers.
80 But the construction task requires me to ascertain the parties’ objective intention, and having regard to the language of that provision and the Liberty Policy as a whole, I am not persuaded that the evidence pointing to similarities between various policies, and the way the parties conducted themselves, is sufficient to enable me to draw the conclusion that Condition 15 ought be construed in the manner contended for by Icon. Further, a significant barrier to accepting Icon’s contended construction is another known surrounding circumstance: the parties’ adoption of adding “endorsements” to the policies.
The parties’ use of endorsements
81 As I have outlined, Liberty’s main case focussed on the meaning of the term “Estimated Project Period” in the Opal Endorsement (see [35]), which period ended on 10 August 2018. Hence, it was said the cover extended only to that period and did not include the defects liability period.
82 Icon submitted that the endorsement was not relevant to its contract case. Two reasons were advanced in support of this contention. First, it was said that because the endorsement was not provided to Icon, it is not a “contract document” and is therefore inadmissible in construction as part of the surrounding circumstances of the contract because it was not “known” by both parties, as required by the authorities. I reject this submission. It was agreed that, although the endorsement was not provided to Icon, the substance of the terms of the endorsement were provided in writing by Chase to Austbrokers. This fact, coupled with the known circumstance that a number of prior endorsements had been prepared in similar terms, following similar notifications and email confirmations, tells against the conclusion that the terms of the endorsement were not known by both parties. Accordingly, the Opal Tower Endorsement is relevant in construing the cover provided under the Liberty Policy.
83 Secondly, Icon says that, if the endorsement is relevant, the “estimated project period” set out in that endorsement does not have the effect contended for by Liberty, because that period was only an “estimate”. The endorsement noted that the Liberty Policy was amended to include the Opal Tower Contract, and Icon contended that this necessarily meant the whole of that contract, including the defects liability period; and the Opal Tower Endorsement specifically stated that “all other terms and conditions and limitations apply as per policy”, which, it was contended, included Icon’s “right” under Condition 15.
84 Although it may be accepted that it was known to the parties that construction contracts generally required insurance to be in place to cover the defects liability period, that circumstance cannot displace the language of the endorsement in the light of the language of the Liberty Policy as a whole. Contrary to Icon’s assertion that “estimated project period” must be read only as an “estimate”, it would be commercially inconvenient to construe that phrase, with the precision with which the period is drafted (“4:00 pm local standard time”), as not marking an end point to the amended cover provided by that time period. Further, as an amendment to the Liberty Policy, the endorsement must be read with that policy. Critical to the operation of the Liberty Policy was the definition of “Insured”, which included a number of companies within the Icon Group. The endorsement adds an additional insured, being Australia Avenue Developments Pty Ltd (AAD), the other party to the Opal Tower Contract. As an additional insured, the endorsement provides cover for Icon and AAD with the “amendments detailed herein”. As Liberty correctly submitted, such additional insureds were not intended to be “added” to the Liberty Policy “at large”. It follows that the identification of a period of insurance for additional insureds is important in ensuring clear limits as to the extent of coverage offered to any additional insureds.
85 In the light of the parties’ adoption of declarations under and endorsements to the Liberty Policy, further weighing against Icon’s construction that Condition 15 was engaged is the agreed fact that the premium was based on a deposit premium charged for the renewal, which was then offset against the premium payable for contracts declared during the policy period. Icon submitted that its construction of Condition 15 worked harmoniously with Condition 8. It said that the “additional premium” contemplated by Condition 15 is the premium representing the difference between the “turnover” for that project during the annual policy period which would otherwise be payable under Condition 8, and the full contract value which would be earned over the entire life of the contract. Thus, Icon submitted that Condition 15 permitted it to say “I now seek cover for the full contract duration, and I will pay you a premium on the additional revenue that I will earn from this contract for the full contract duration”, and that this is in fact what happened.
86 I cannot accept this submission. First, to the extent that the submission relies upon Condition 8 so as to show that, contextually, Condition 15 was objectively intended to operate in a manner consistent with the concept of turnover, it is a submission which ignores the express words of the definition of that term. That definition, in operation with Condition 8, identifies that the “agreed rate” is to be applied against the total value of work completed for the insured’s business. To the extent I follow the submission, Icon’s contention would have that defined term narrowed to a point inconsistent with its application in Condition 8. Secondly, the submission appears to be a departure from Icon’s pleaded case, and from the agreed position it adopted in the Agreed Facts. Icon admitted in its reply that the premium was calculable otherwise than in accordance with Condition 8, and it otherwise pleaded that the agreed calculation of the premium was payable for each new project commenced during the annual policy period, calculated on the value of the total contract works for that project. Nothing in that pleaded operation of how the policy machinery determined the premium to be paid relies on the concept of turnover.
87 As Liberty correctly noted, Condition 15’s “additional premium” cannot sensibly mean payment of the premium for the Liberty Policy itself. The ineluctable inference is that payment of the balance of the premium calculated under the endorsement was simply that: payment of the premium for the Liberty Policy. It cannot, therefore, have been “additional premium” for the purposes of Condition 15, that is, “additional” to what was paid for the cover provided under the annual policy. That would give no work to the word “additional”. On Icon’s characterisation of the premium paid for projects declared as “additional premium” for the purpose of run off cover, the entire premium pool collected during the course of each annual policy was “additional premium” paid for run off cover – and, necessarily, only for run off cover. It is unlikely that this was the objective intention of the parties, who were in agreement that the “deposit premium” was to be offset against the future premium paid after the declaration of each project.
88 By way of completeness, I should deal with Icon’s submission that the principle of contra proferentum should be applied. In simple terms, that principle means that where there is ambiguity in the meaning of a contract, the words will be construed against the party who puts them forward: see Andar Transport Pty Limited v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 (at 433 [17] per Gleeson CJ and McHugh, Gummow, Hayne and Heydon JJ); Ankar Pty Limited v National Westminster Finance Australia Limited (1987) 162 CLR 549 (at 561 per Mason ACJ, Wilson, Brennan and Dawson JJ).
89 However, an important qualification to that rule, accepted by Icon, is that resort to that rule may be had if the relevant clause remains ambiguous. It must be recalled that this “rule” of construction is but one of a number of rules of contractual construction: see Rava v Logan Wines Pty Ltd [2007] NSWCA 62 (at [53]–[56] per Campbell JA). Although it was traditionally the case that the rule applied commonly in insurance contracts (see, eg, Halford v Price (1960) 105 CLR 23 (at 34 per Fullagar J)), it has been held that the rule is one of last resort, to “apply only when ambiguity remains after all other avenues of construction have been exhausted”: Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217 (at [66] per Bathurst CJ). That proposition accords with the established position that the process of construing insurance contracts is governed by ordinary principles of contractual interpretation. Accordingly, where resort to extrinsic materials and the text, context and purpose of the Liberty Policy has resolved the ambiguity I have identified, there is no occasion to apply the contra proferentum “rule” in this case.
90 It follows that on its proper construction, the Opal Declaration did not meet the requirements of Condition 15.
E.2 If Icon did not comply with Condition 15 by reason of an omission to use some precise form of wording, is Liberty precluded from denying indemnity on that basis by operation of s 54 of the ICA?
91 Section 54 of the ICA relevantly provides:
(1) Subject to this section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into but not being an act in respect of which subsection (2) applies, the insurer may not refuse to pay the claim by reason only of that act but the insurer’s liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer’s interests were prejudiced as a result of that act.
(2) Subject to the succeeding provisions of this section, where the act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract, the insurer may refuse to pay the claim.
(3) Where the insured proves that no part of the loss that gave rise to the claim was caused by the act, the insurer may not refuse to pay the claim by reason only of the act.
(4) Where the insured proves that some part of the loss that gave rise to the claim was not caused by the act, the insurer may not refuse to pay the claim, so far as it concerns that part of the loss, by reason only of the act.
…
(5) A reference in this section to an act includes a reference to:
(a) an omission; and
(b) an act or omission that has the effect of altering the state or condition of the subject-matter of the contract or of allowing the state or condition of that subject-matter to alter.
92 Section 54(1) contemplates the existence of a claim and a contract, the effect of which is that the insurer may refuse to pay the claim: Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 (at 669 per Dawson, Toohey, Gaudron and Gummow JJ); Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33; (2014) 252 CLR 590 (at 597–8 [21] per Hayne, Crennan, Kiefel, Bell and Gageler JJ). An omission for the purposes of s 54 may be a failure by the insured “to exercise a right, choice or liberty which the insured enjoys under the contract of insurance”: Antico (at 669 per Dawson, Toohey, Gaudron and Gummow JJ); FAI Insurance Limited v Aust Hospital Care Pty Ltd [2001] HCA 38; (2001) 204 CLR 641 (at 652 [22] per McHugh, Gummow and Hayne JJ).
93 Icon’s s 54(1) claim takes as its starting point that Condition 15 required Icon to refer, in terms, specifically to that condition or to “run off”, to be entitled to run off cover. It contends that, by s 54(6)(a), Icon’s failure to specifically refer to the condition or to run off was an omission constituting an act under s 54(1). Icon submitted that an omission is not restricted to something which an insured was obliged to do, and thus an omission to seek run off cover, a right Icon said it had under the Liberty Policy, can fairly be described as an omission for the purposes of s 54(6)(a). Accordingly, as the submission went, Liberty could not refuse cover by reason of that omission by operation of s 54(1), and that no relevant prejudice to Liberty is present.
94 I reject these submissions. Icon has not run a case that it “omitted”, in September 2017, to ask for run off cover, and thus the premise upon which the s 54 case is founded does not arise for consideration. As Liberty correctly submitted, the “claim” to which s 54 makes reference is the claim actually made by Icon. Section 54 does not permit, let alone require, the claim to be reformulated; nor does s 54 operate to relieve the insured of “restrictions or limitations that are inherent in the claim”: Maxwell (at 598 [23] per Hayne, Crennan, Kiefel, Bell and Gageler JJ). The reason why Liberty may properly refuse to pay the purported claim is because Icon seeks indemnity in respect of alleged property damage that did not occur within the period of insurance under the relevant policy. Section 54 contemplates a restriction or limitation “which must necessarily be acknowledged in the making of a claim” by Icon: Maxwell (at 598 [23] per Hayne, Crennan, Kiefel, Bell and Gageler JJ).
E.3 Conclusion on the Run Off Claim
95 For the foregoing reasons, the Opal Declaration did not meet the requirements of Condition 15, and its s 54 claim also is without merit. Accordingly, the Run Off Claim fails.
F STATUTORY EXTENSION OF COVERAGE CLAIM
96 Icon pressed an alternative case should I find that Icon did not trigger the run off provision of Condition 15. In that event, Icon says that there was a project-specific insurance policy for the Project, separate from the Liberty Policy. The result of such a finding, it was said, is that s 58 of the ICA is engaged, and the requirements of which were not satisfied by Liberty.
97 Relevantly for present purposes, s 58 provides:
58 Insurer to notify of expiration of contracts of general insurance
(1) In this section, renewable insurance cover means insurance cover that:
(a) is provided for a particular period of time; and
(b) is of a kind that it is usual to renew or for the renewal of which it is usual to negotiate.
(2) Not later than 14 days before the day on which renewable insurance cover provided under a contract of general insurance (in this section called the original contract) expires, the insurer shall give to the insured or a person acting as agent for the insured a notice in writing informing the person to whom the notice is given of the day on which and the time at which the cover will expire and whether the insurer is prepared to negotiate to renew or extend the cover.
(3) Where:
(a) an insurer has failed to comply with subsection (2); and
(b) before the original contract expired, the insured had not obtained from some other insurer insurance cover to replace that provided by the original contract;
then, by force of this section, there exists between the parties to the original contract a contract of insurance that provides insurance cover as provided by the original contract, except that the cover provided is in respect of the period that:
(c) commences immediately after the insurance cover provided by the original contract expires; and
(d) expires, unless the contract is sooner cancelled, at:
(i) the expiration of a period equal to the period during which insurance cover was provided by the original contract; or
(ii) the time when the insured obtains from the original insurer or some other insurer insurance cover to replace that provided by the original contract;
whichever is the earlier.
…
F.1. Was there a project-specific insurance policy, separate from the Liberty Policy, for the Project?
98 This question was framed in this manner because it was common ground that, in order for s 58 to be engaged on Icon’s case, it was necessary for there to be a project-specific policy of insurance to engage s 58(1)(a), being cover that was provided for a particular period of time. Icon submitted that the answer to this question must be “yes” because, in the absence of it having triggered the run off provision contained in Condition 15, the only way in which it can have obtained cover extending until 10 August 2018 is as a result of “an offer and acceptance on ordinary contractual principles” on an “ad hoc” basis as recorded in the Opal Declaration, Chase’s 9 December 2015 email which referred to cover as “ending 10 August 2018”, and the Opal Endorsement. Given that, in those circumstances, the period of the cover provided for the Project was longer than the period of insurance for the Liberty Policy, and the premium was calculated in a manner different to that set out in Condition 8, it was said the conclusion should be that it was a separate project-specific policy on the terms and conditions set out or referred to in the Opal Endorsement.
99 I reject these submissions. There was no such “project-specific” policy in place for the Project. The parties did, of course, adopt the practice of using “endorsements”, but historically such endorsements (put in place following the entry into the relevant policy) were treated as variations. It was agreed that Chase usually provided Austbrokers with such endorsements confirming that cover was in place in respect of each project Austbrokers notified to it, 18 of which were in evidence. Each is in substantially the same form save that each identifies a different project, names different “additional insureds”, identifies differing project periods and includes a different “premium” payable. As I have outlined above, there were in fact two endorsements prepared for the Project. The first endorsement was signed by Mr Hingston on 22 December 2015 and emailed to Mr Adam Bortone of Chase the next day. On 13 April 2016, Mr Hingston returned a signed and stamped second amended endorsement placing slip for the Project, which was emailed to Mr Bortone shortly after. Although Mr O’Reilly’s evidence was that he “did not receive any endorsement from Chase in relation to the Project at that time”, there was an email from Mr Bortone of Chase where he stated “Can you please confirm all is in order and I will send over the Endorsements for your records”. Accordingly, it ought to have come as no surprise to Mr O’Reilly that an endorsement was prepared in respect of the Project.
100 As Icon itself submitted in respect of Mr Hingston’s evidence in relation to the Rectification Claim, the contention that the parties conducted themselves on the basis of an ad hoc “offer and acceptance” arrangement in respect of the declarations and endorsements for each individual project is inconsistent with the documentary evidence. That evidence shows that Chase sent Liberty information about projects commenced and declared by Icon for Liberty’s records, rather than for the purposes of negotiating a new contract. When confronted with such documentation in cross-examination, including an email from Mr Bortone of Chase to Mr Hingston on 6 November 2015 in relation to a project that was notified as one that “will form part of the annual policy”, Mr Hingston admitted that it was consistent with his understanding at the time that Icon had the right to declare projects, which was not contingent upon “acceptance” by Liberty. This operation of the policy is also consistent with Chase’s notification to Liberty of the Project itself being “included under the annual” (see [32] above).
101 On these bases, the insurance coverage for the Project was not a stand-alone project-specific policy of insurance, but rather a variation to the Liberty Policy. It was therefore not “renewable insurance cover” for the purposes of s 58 of the ICA.
F.2. If the answer is yes, was that project-specific insurance policy cover ‘of a kind that it is usual to renew or for the renewal of which it is usual to negotiate’?
102 As I have found that the answer to first question is no, this question does not arise. However it is appropriate that I deal with it briefly. As can be seen from the text of s 58(1)(b) of the ICA, this is a further threshold question posed under s 58. If the answer to this question is ‘no’, then the Statutory Extension of Coverage Claim will also fail.
103 Icon submits that the following facts support the conclusion that it is usual to renew project-specific construction insurance of the type it contends was granted by Liberty to Icon: first, Mr O’Reilly always informed Chase when there was a delay on the Icon Group’s projects and Chase always agreed to extend the project period without requiring additional premium for such extensions; secondly, Chase had sometimes (but not always) given Austbrokers notice of the expiry of the estimated project period for the projects that were endorsed onto the annual Liberty policies; thirdly, another insurer also routinely gave notice of the expiry of the estimated project period for a particular project; and fourthly, both a renewal and an extension are to the same effect for the purposes of the legislation. As to this last point, this was said to be supported by the reference in s 58(2) to the need for the insurer to give notice of whether it is prepared to negotiate to “renew or extend” the cover, along with s 11(9), which provides that entering into a contract of insurance includes the making of an agreement “to renew, extend or vary the contract” (emphasis added). Thus, it was put that the evidence relied upon by Icon shows that project specific insurance was often “extended”.
104 I do not accept that these factors establish that it was usual to renew such policies. Icon adduced no direct evidence to support the fact that such project-specific policies were usual to renew or negotiate, despite it having called Mr Bovington. At its highest, the evidence indicates that on occasions Icon notified Liberty that a project which it had anticipated completing by a certain date was “delayed” and thus the existing policy of insurance in relation to that particular project needed to be extended. Further, on a limited number of occasions, Austbrokers was given notice by Chase or another insurer that endorsements for specific projects were due to expire.
105 As I will deal with below in respect of Icon’s Rectification Claim, Mr O’Reilly’s evidence makes plain that his requests for extensions were not “requirements”, given he was of the view that the Liberty Policy would still remain in force during the defects liability period. Accordingly, even on Icon’s own evidence, these were not project-specific policies that were “usual to renew or for the renewal of which it is usual to negotiate”.
F.3 Conclusion on the Statutory Extension of Coverage Claim
106 Given my findings in relation to the above two questions, the Statutory Extension of Coverage Claim must fail. Accordingly, the further questions posed by the parties in relation to this claim, as set out (at [42] above), do not arise for consideration.
107 Prior to setting out the legal principles relevant to rectification, and considering the evidence and making relevant findings, it is instructive to set out Icon’s articulation of its alleged equity. Icon relevantly pleaded the following in relation to the Rectification Claim:
46 At the time that the Liberty 2015/16 Annual TPL Policy was entered into on 18 September 2015, it was the common intention of both Icon and the Icon Group (acting through their agent Austbrokers) and Liberty (acting through their agent Chase) that the Liberty 2015/16 Annual TPL Policy would apply during the Construction Period and the Defects Liability Period of any project:
(a) commenced by Icon or the Icon Group during the Period of Insurance;
(b) declared by the Icon Group to Liberty; and
(c) for which an additional upfront premium was calculated by Chase (as agent for Liberty) based on the total project value and paid by the Icon Group.
…
47 The common intention of both Icon and the Icon Group (acting through their agent Austbrokers) and Liberty (acting through their agent Chase) as pleaded in paragraph [46] was not reflected in the written terms of the Liberty 2015/16 Annual TPL Policy by reason of mutual mistake by both Icon and the Icon Group (acting through their agent Austbrokers) and Liberty (acting through their agent Chase).
48 By reason of the matters pleaded in paragraphs [46] and [47] above, the Liberty 2015/16 Annual TPL Policy should be rectified by adding an endorsement to the effect set out in Annexure “A” to this Statement of Claim.
108 Annexure “A” then set out the Contracts Commencing Endorsement (see [38] above), with one amendment. That amendment was to change the defined term “Construction Period” to provide that that period was to be “36 months any one Contract Including any testing and commissioning period”, instead of 24 months (Annexure “A” Endorsement). In all other respects, the Annexure “A” Endorsement was identical to the Contracts Commencing Endorsement.
109 The common intention pleaded at [46] of the FASOC was particularised as follows:
(1) discussions between Mark O’Reilly of Austbrokers and Adam Burgess of Chase in early- to mid-2012 prior to the Icon Group first obtaining its insurance through Chase which were said to be to the effect that, for both the “Material Damage Contract Works” and “Third Party Liability” insurance policies, coverage would be provided on a project by project basis with each project being separately declared and an upfront premium calculated for each project on declaration;
(2) the fact that, at all times between approximately 2012 and 31 December 2018, Icon (through Austbrokers) had declared to Liberty and QBE (through Chase) each of Icon’s projects as and when it had been awarded and Chase had calculated an upfront premium based on the total contract value which the Icon Group had paid upfront on declaration; and
(3) a conversation between Mark O’Reilly and Adam Bortone, at the time when Chase included the Contracts Commencing Endorsement in the 2017/18 Chase TPL Policy Wording, to the effect that that endorsement was simply confirming and recording the basis upon which both Austbrokers and Chase had previously been acting in relation to the “Third Party Liability” insurance coverage for the Icon Group.
110 Stripping away irrelevant and misguided declaratory relief, by its Third Further Amended Originating Application, Icon relevantly sought: (a) an order that the Liberty Policy be rectified by adding the Attachment “A” Endorsement, or alternatively, by making the amendments set out therein, to that policy; and (b) an order that a copy of the Court’s judgment and orders be endorsed upon the Liberty Policy.
General principles of rectification
111 The principles relevant to the equitable remedy of rectification were not in dispute. The purpose of the remedy is to make a contractual instrument “conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately”: Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 (at 350 per Mason J). Its rationale has been said to be the avoidance of an unconscientious departure from the common intention of the parties to an agreement: Franklins (at 710 [444] per Campbell JA, Allsop P and Giles JA agreeing); Ryledar (667 [315] per Campbell JA, Mason P and Tobias JA agreeing); Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 2) [2015] NSWCA 119 (at [57] per Gleeson JA, Meagher JA and Sackville AJA agreeing). In Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85 (at 117 [103]–[104]), Gageler, Nettle and Gordon JJ set out the elements of rectification as follows:
Rectification is an equitable remedy, the purpose of which is to make a written instrument “conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately”. For relief by rectification, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified, there was an “agreement” between the parties in the sense that the parties had a “common intention”, and that the written instrument was to conform to that agreement. Critically, it must also be demonstrated that the written instrument does not reflect the “agreement” because of a common mistake. Unless those elements are established, the “hypothesis arising from execution of the written instrument, namely, that it is the true agreement of the parties” cannot be displaced.
The issue may be approached by asking – what was the actual or true common intention of the parties?
(Citations omitted).
112 As to the ascertainment of that common intention, it is helpful to draw on the reasoning of Tobias JA in Ryledar: cited with approval in Simic (at 117 [104] n 113). In that case, his Honour has set out six principles relevant to the ascertainment of the common intention necessary to obtain relief by rectification (at 642 [182]–[186]):
First, the common intention which must be established by clear and convincing proof to justify rectification must be the actual or true common intention of the parties. Second, evidence of that intention may be ascertained not only from the external or outward expressions of the parties manifested by their objective words or conduct but also from evidence of their subjective states of mind.
Third, where, for instance, the correspondence between and/or conduct of the parties establishes a positive lack of an “objective” common intention, then that evidence must be taken in conjunction with the evidence (if any) of their subjective states of mind to determine whether the necessary common intention has been established. …
Fourth, in Westland Savings Bank v Hancock [1987] 2 NZLR 21 at 31, it was held by Tipping J that a party subsequently acting as if the instrument stood in the form into which it is sought to be rectified was strong evidence of that party’s intention at the time to execute the instrument in its rectified form. Such conduct is obviously of significance but, depending on other evidence, if any, is not necessarily conclusive although in the absence of any such evidence it may be.
Fifth, it follows that where the correspondence and/or conduct positively establishes the necessary common intention, then assertions by the party opposing rectification of his or her subjective state of mind which is inconsistent with that party’s outward manifestation of his or her intention, being unexpressed and uncommunicated, is unlikely to trump his or her expressed intention. But this is because that party is unlikely to be believed.
Sixth, where … the outward expression of the parties’ common intention is at best inconclusive, then establishing that the subjective states of mind of the parties evinces the relevant common intention becomes critical if the necessary standard of proof to support an order for rectification is to be achieved.
113 Further, his Honour noted (at 643 [189]) his agreement with the reasoning and conclusions of Campbell JA in that case, with whose judgment Mason P also agreed. Importantly for present purposes is Campbell JA’s conclusion on whether an “outward expression of accord” is necessary for the grant of relief by way of rectification; an issue considered, but not decided, by Kiefel J in Simic (at 103 [43]–[45], French CJ agreeing) and by Wilson J in Maralinga (at 452, Gibbs CJ agreeing). That expression has its roots in the decision of Joscelyne v Nissen [1970] 2 QB 86 (at 98 per Russell, Sachs and Phillimore LJJ), in which the Court of Appeal had said that such an expression was a necessary requirement to the grant of the remedy. In Ryledar, Campbell JA traced in great detail (at 658–68 [273]–[316]) the “debate” about that suggested requirement. For present purposes, however, it suffices to record that his Honour noted (at 660 [280]) the ambiguity of the term, and concluded that such an outward expression need not be “by words that say in substance “this is my intention””, but still requires disclosure of some form. This conclusion accords with what was said in Simic (at 117 [104], per Gageler, Nettle and Gordon JJ):
There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.
Proof necessary for rectification
114 As to the establishment of that common intention, the evidence necessary to discharge the onus needs to be convincing. In the leading judgment of Fowler v Fowler (1859) 4 De G & J 250 (in a passage that has been approved by the High Court in Maralinga (at 449 per Mason J, Menzies J agreeing), Pukallus v Cameron (1982) 180 CLR 447 (at 457 per Brennan J) and most recently in Simic (at 102 [41] per Kiefel J, French CJ agreeing)), Lord Chelmsford said that the power to order the remedy of rectification is “one which should be used with extreme care and caution”. His Lordship continued:
a person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution.
(Emphasis added).
115 Another formulation is that “clear and convincing proof” is necessary to succeed in a claim for rectification: Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 (at 345 per McLelland AJA); Franklins (at 712 [451] per Campbell JA, Allsop P and Giles JA agreeing); Ryledar (at 638 [161] per Campbell JA, Mason P and Tobias JA agreeing); Joscelyne (at 98 per Russell, Sachs and Phillimore LJJ). As Leeming JA recently observed in Seymour Whyte Constructions [2019] NSWCA 11; (2019) 99 NSWLR 317 (at 323 [15]), this insistence on clear proof reflects an ancient concern to not undermine the integrity of written agreements.
116 Furthermore, these observations must be viewed in the light of s 140 of the Evidence Act 1995 (Cth), which not only requires (by way of subsection (1)) that I must be satisfied on the balance of probabilities, but also (by way of subsection (2)) requires I consider each of the following matters when determining whether a case is proved on the balance of probabilities: (a) the nature of the cause of action or defence; (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged.
117 Consistently with these mandatory requirements, in considering the nature of the equity of rectification, it is important to keep in mind the unlikelihood that commercial persons would have formed a common intention which was not reflected in the agreement which they deliberately reduced to writing. Such inherent unlikelihood can be seen as a reflection of what Mason J termed the “hypothesis arising from execution of the written instrument, namely, that it is the true agreement of the parties”: Maralinga (at 350 per Mason J), quoted with approval in Simic (at 117 [103] per Gageler, Nettle and Gordon JJ); Earl v Hector Whaling Ltd [1961] 1 Lloyd’s Rep 459 (at 468 per Pearce LJ), quoted in Ryledar (at 641–2 per Tobias JA, Mason P and Campbell JA agreeing); see also Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 (at 483 [33] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ). Indeed, as Brightman LJ observed in Thomas Bates and Son Ltd v Wyndhams (Lingerie) Ltd [1981] 1 WLR 505 (at 521):
as the alleged common intention ex hypothesi contradicts the written instrument, convincing proof is required in order to counteract the cogent evidence of the parties’ intention displayed by the instrument itself. It is not, I think, the standard of proof which is high, so differing from the normal civil standard, but the evidential requirement needed to counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties.
(Emphasis added).
118 In Franklins, Campbell JA echoed these considerations when he explained (at 713 [459]) that great care is required in making factual findings of common intention that ground a rectification order. The reasons for such care were said to include issues of policy, such as the practical importance and social institution of making contracts in writing, of people ordinarily being able to rely upon documents, that are apparently regular, meaning what they say, and of the danger associated with imposing on a party a contract which they did not make. These well entrenched cautions have informed my approach to the finding of facts relevant to determining whether Icon is entitled to the equitable relief it seeks.
G.3 Whose intention is relevant?
119 As has been set out above (at [42]), the parties’ legal questions for determination raised a point of contention which looms large in this case: whose intention is relevant in the ascertainment of common intention? Each party contracted with the other through agents, Austbrokers on behalf of Icon, and Chase on behalf of Liberty. In order to address this question, I will first set out briefly the principles concerning the attribution of knowledge in a rectification case, before making findings.
120 There was no dispute that an agent’s intention can be attributed to its principal for the purposes of a rectification suit in appropriate circumstances. This can be seen from Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd [2005] NSWCA 280; (2005) ATC 4,986, a case concerning whether contracts for the sale of land were able to be rectified to be inclusive of GST. An issue arose as to whether the intention of the vendor’s agent could be attributed to the vendor. Ipp JA (with whom Santow JA agreed) considered the principles as to the attribution of an agent’s intention. His Honour observed (at 4,995–6 [78]–[80]):
In Permanent Trustee Australia Co Ltd v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 Handley JA (with whom Meagher JA and Powell JA agreed) after referring to a number of authorities, including Blackburn Low & Company v Vigors (1887) 12 App Cas 531, said that where an agent is authorised to commit the principal to a transaction and the agent’s state of mind is relevant to that transaction, “the acts of the agent are the acts of the principal and the agent’s state of mind must be the state of mind of the principal as well.”
The decision of the Court of Appeal in Permanent Trustee Australia Co Ltd v FAI was reversed by the High Court on different grounds: (2003) 214 CLR 514. Gummow and Hayne JJ, however, (at 548 [87]) approved the following statement of Handley JA:
“Where the agent acts within his authority with the knowledge and question present to his mind, the principal should be bound by that knowledge, however acquired. I see no basis for ignoring any part of the agent’s knowledge, present to his mind, when he is doing the authorised act. The source of the knowledge seems irrelevant. What must matter is the agent’s state of mind when doing the authorised act.”
As is apparent from Permanent Trustee Australia Co Ltd v FAI, the same principle governs the intention of the agent. Thus, where the agent acts, with a particular intention, within his or her authority, that intention is attributed to the principal.
121 See also Metlife Insurance Ltd v Visy Board Pty Ltd [2007] NSWSC 1481 (at [31]–[32] per Brereton J); Mobis Parts Australia Pty Ltd v XL Insurance Co SE (No 7) [2017] NSWSC 1321 (at [394] per Stevenson J).
122 These principles are apposite in the present case. Thus, in determining whose intention is relevant in establishing whether the common intention pleaded has been made out, an antecedent question must first be answered: what was the scope of the authority conferred by Icon upon Austbrokers, and by Liberty upon Chase?
123 Relevantly for present purposes, Icon led evidence from the following witnesses: Mr Michael Sisson, Chief Financial Officer (Victoria) of Icon Corporate Services Pty Ltd; Mr Andrew Ford, Group Chief Financial Officer of Icon Corporate Services Pty Ltd; and Mr Nicholas Murdoch, Group Chief Financial Officer of the Icon Group.
124 Messrs Sisson, Ford and Murdoch were each cross-examined and, in combination, their oral evidence occupied just over one hour. As CFO, Mr Murdoch explained he was “responsible for making decisions about Icon Group’s insurance program[me]”, which was confined to the annual policies. Mr Ford had responsibility for insurance requirements in respect of particular projects, and Mr Sisson was also involved in making decisions about Mr O’Reilly’s recommendations. Each relied upon Mr O’Reilly to obtain suitable third party liability insurance policies, each always accepted his recommendations, and each, unsurprisingly, expected that the policies covered Icon during the defects liability period for its projects. They never met with any representatives of Chase, Liberty or QBE. In cross-examination, it was put to Mr Murdoch, Mr Sisson and Mr Ford that they did not read the Liberty policies, and they readily agreed.
125 The tenor of the evidence of each of these witnesses with respect to the relationship between Icon and Mr O’Reilly can be gleaned by an extract from the evidence in chief of Mr Murdoch, who said:
Each year, in the lead up to the renewal of the annual insurance policies, the insurer/s would send through a renewal package. The renewal package required us to provide various data. My department was responsible for completing the forecast or historical data. My department provided that information to Icon's insurance broker, Austbrokers. I relied upon Austbrokers to work out the best policy to suit Icon's needs.
I dealt with Mark O’Reilly at Austbrokers as Icon's principal broker. I provided Mark O’Reilly with actual and forecast information in relation to renewals of Icon's insurance program. Mark then usually prepared and sent to me a “Renewal Report” outlining his recommendations each year. Sometimes I met with Mr O’Reilly prior to the insurance being placed. Mr O’Reilly would say words to the effect “these are the three alternatives, and this is the one I recommend that you go with”. I cannot recall any occasion on which Icon did not accept Mr O'Reilly's recommendation.
I did not have much discussion with Mark O’Reilly about the policy wordings. I did not read the policy wording. I am not an insurance lawyer. I relied upon Mr O’Reilly’s expertise in that regard. I cannot recall ever meeting with anyone from Liberty or QBE in relation to insurance for the Icon Group.
126 I accept the evidence of each of these witnesses.
127 Mr O’Reilly gave evidence by way of affidavit and was cross-examined by Liberty over the course of one sitting day. Over the course of his career, Mr O’Reilly worked as an insurance broker for the Icon Group from 2001 to 2006, and from 2009 to 2018. He first obtained third party liability cover for Icon through Chase in September 2012 and that cover was provided by Liberty. There was no formal agency agreement in place between Icon and Austbrokers, aside from the “Renewal Reports” provided by Mr O’Reilly to Icon which set out Austbrokers’ recommendations on the insurance cover Icon should place for its construction programme. Mr O’Reilly deposed the following as to his dealings in general with Icon:
The insurance program for the Icon Group was coordinated by Nick Murdoch, who was Chief Financial Officer for the whole group, and I routinely dealt with Nick Murdoch in relation to the annual renewal of the Icon Group’s insurance program. I also dealt with different Chief Financial Officers in the different states in relation to the annual renewal of the Icon Group’s insurance program, as well as in relation to insurance requirements for projects commenced in their respective states. Between 2012 and 2018, the Chief Financial Officer for Victoria was Michael Sisson, the Chief Financial Officer for New South Wales was Andrew Ford, and (after the Icon Group expanded into Queensland) the Chief Financial Officer for Queensland was Ron Waldron.
I routinely prepared a Renewal Report for the Icon Group in relation to the annual renewal of its insurance program. The Renewal Report that I prepared set out details of approaches I had made to the market with respect to the Icon Group’s insurance requirements, and my recommendations as to the placement of cover. The annual Renewal Report that I provided to the Icon Group also set out the fees that would be payable by the Icon Group to Austbrokers for acting as its insurance broker. There was no other written document recording the terms on which Austbrokers acted as insurance broker for the Icon Group. I provided the Renewal Report to Nick Murdoch, Michael Sisson and/or Andrew Ford, and we would then usually speak on the phone to confirm the Icon Group’s instructions. I cannot recall any occasion during 2012 to 2018 when the Icon Group did not accept my recommendation in relation to the placement of cover.
128 As is apparent, this evidence is consistent with that given by Mr Ford, Mr Murdoch and Mr Sisson. It was not relevantly challenged in cross-examination, and I accept it.
129 As to the specific projects declared by Icon through Mr O’Reilly to Liberty, via Chase, once Icon entered into a new project, Icon provided what Mr Ford described as a “pro forma set of information” in relation to that project, including the parties, the project value, the project duration and the defects liability period, and the number of storeys and basement levels. Mr O’Reilly then declared that information to Chase (as outlined above at [30]–[33]), Chase would confirm that cover was in place for the project either via an email or an endorsement, Mr O’Reilly would invoice Icon in respect of the project premium, and would then issue it with an insurance certificate.
Conclusion as to attribution of intention to Icon
130 Liberty submitted that Mr O’Reilly’s intentions were irrelevant, as the evidence of Icon’s witnesses establish no more than that he made recommendations which Icon routinely adopted; instead the decision as to the insurance cover to be taken was ultimately made by Icon’s officers and employees. It may be accepted that in order for Icon to enter into the policies Mr O’Reilly’s recommendations required acceptance by Icon’s management, but this does not have the consequence that Liberty submits.
131 Icon intended to enter into the policies that were recommended by Mr O’Reilly, Mr O’Reilly had the authority to negotiate and contract on Icon’s behalf, and no one from Icon dealt directly with either Chase or Liberty in relation to the negotiation or placement of those policies. Mr O’Reilly was the driving force and the real decision maker of the transactions, where Icon did not sign anything or read any of the policy wordings and was entirely content to trust the expertise of Mr O’Reilly. It is thus the case that Mr O’Reilly was the person “whose job it was to make the required business judgment as to the terms upon which [Icon] should contract”, being the decision maker rather than a person conducting a “mere negotiation”: Perpetual Ltd v Myer Pty Ltd [2018] VSC 2 (at [106] per Croft J, upheld on appeal in Perpetual Ltd v Myer Pty Ltd [2019] VSCA 98 per Whelan, Niall and Hargrave JJA); Thiess Pty Ltd v Arup Pty Ltd [2012] QSC 185 (at [198] per Applegarth J); Thiess Pty Ltd v FLMIDTH Minerals Pty Ltd [2010] QSC 6 (at [126] per McMurdo J); Hawksford Trustees Jersey Ltd v Stella Global UK Ltd [2012] EWCA Civ 55 (at [41] per Patten LJ, Etherton and Rix LJJ agreeing).
132 In NIML Ltd v MAN Financial Australia Ltd [2006] VSCA 128; (2006) 15 VR 156, Nettle JA discussed the rule of agency that, where an agent is authorised to enter into a transaction in which his own knowledge is material, the agent’s knowledge may be attributed to the principal. Relevantly for present purposes, his Honour said (at 169 [43], Buchanan JA and Bongiorno AJA agreeing):
It is based or at least based in part on the idea that there are occasions in which an agent may be an agent to know. It applies among other situations where an agent retains a principal because the principal expects that the agent’s knowledge will be of benefit to the principal in connection with the transaction in view. Thus, for example, where an insured retains a broker, the insured generally expects that the broker will use the knowledge which the broker has acquired in the insurance market to obtain more favourable terms than the insured could secure for itself. In those circumstances the broker is an agent to know and thus the agent’s knowledge will bind the principal.
133 Mr O’Reilly’s knowledge and intentions were material to the transactions. Applying the principles explained in NIML and Igloo Homes, Mr O’Reilly’s particular intentions when entering into the policies and in negotiating and contracting with Chase should be attributed to Icon. Accordingly, it is Mr O’Reilly’s intention that is relevant in conducting the relevant inquiry.
The evidence
134 I have referred briefly above (at [13]) to the two agreements establishing the agency between Liberty and Chase, executed in May 2016. Each agreement attached policy wordings for both an annual third party liability policy and for a project specific third party liability policy and were in relevantly identical terms.
135 By virtue of cl 2.2 of the agreements, it was expressly provided that Chase must not, without Liberty’s prior written consent, do or permit to be done anything on behalf of Liberty that it is not expressly authorised to do or permit under the agreement. Clause 4 was headed “Services”, under which cl 4.1 set out a series of “authorisations”. By cl 4.1(e), only two named individuals had authority to act as agents of Liberty under the agreement, being Mr Adam Burgess and Mr Adam Bortone. By cl 4.1(a), Chase was authorised to act as agent to provide quotations, issue certificates of currency and policy documentation in respect of contracts of insurance of the type annexed as the policy wordings, which included the wordings which became the Liberty Policy between Liberty and Icon. Chase was also authorised, by cl 4.1(f), to provide an insured with policy documentation, including policy wordings, policy schedules, certificates of insurance and any endorsements.
136 Clause 5.2 provided that Chase must refer to Liberty any request for, or query relating to, insurance business that it was not expressly authorised under the agreement to process or to respond to. Clause 5.1 placed a similar and more specific restriction, being that Chase could not, without Liberty’s prior written approval, extend the period of insurance of any insurance business other than as provided for in the Underwriting Guidelines. Those guidelines did not, in terms, provide for any extension period, but did place a restriction on renewals without prior referral to Liberty in relation to those risks that were up to $50 million. The guidelines also provided that Chase was only authorised, without referral to Liberty, to provide quotations for risks up to $15 million.
137 Clause 4.1(f) was also subject to the guidelines. The guidelines set out a list of endorsements, including specific exclusionary endorsements for certain kinds of activities, such as airport works and underground services, and extensions of cover for other types of activity. No “contracts commencing endorsement” was set out in that list of endorsements.
138 There was documentary evidence, by way of emails from Mr Bortone of Chase to Mr Hingston of Liberty during the relevant period, which make clear that Chase was aware of the need for approval for renewals and quotations for certain of Icon’s construction projects, which projects were over the monetary risk thresholds set out above.
139 Further evidence of the agency relationship between Chase and Austbrokers was provided by Mr Hingston. The critical period for Icon’s case as to Chase’s authority was between September 2012 and September 2013. As explained above (at [21]), that was when Icon’s payment of the premium changed from being by reference to Condition 8, based upon turnover, to paying for a deposit premium which was then offset or deducted against the premium payable when projects were declared under the relevant annual policy. There was a dispute between the parties as to whether this occurred in 2012, or 2013. It will be necessary to return to this change more fully when dealing with the evidence as to whether any Contracts Commencing Intention was formed between the parties, but for present purposes, the following may be noticed.
140 Mr Hingston gave evidence that, in September 2013, he had a phone conversation with Mr Burgess in which Mr Burgess informed him that Icon did not want to pay on a turnover basis as “turnover” was defined in the annual policy, and that, instead, Icon wanted to pay a deposit premium based on projects worth $50 million at the start of the annual policy and then an additional premium for each project that was declared based on the total contract value upfront. Mr Burgess informed Mr Hingston that the relevant projects, being projects for which an additional premium was paid, would be covered under the annual policy then in place for the period of the relevant projects.
141 Mr Hingston ultimately confirmed that he had agreed to Icon’s request put forward by Mr Burgess, and further agreed that he knew that Mr Burgess had been discussing those changes with Austbrokers, and that after he confirmed his agreement to those changes, he left it to Mr Burgess to confirm the nature of the changes with Austbrokers.
142 There was also in evidence an endorsement to Liberty’s standard policy wording in respect of another client, drafted by Chase and amended by Mr Hingston, along with emails between Mr Hingston and Chase during the drafting process. That endorsement was drafted in December 2014, to take effect on the relevant policy from September 2013. Importantly, the endorsement was described as a “Contracts Commencing Endorsement”, and Mr Hingston agreed that by that time Liberty had an approved form of Contracts Commencing Endorsement that it had approved Chase to use.
What was the scope of Chase’s actual authority?
143 Icon says that Liberty should be fixed with the state of mind of Mr Burgess as the evidence establishes that Chase, on behalf of Liberty, had actual authority to provide contracts commencing policies from at least September 2013.
144 Liberty disputes the authority Icon seeks to attribute to Chase, primarily by reference to the Agency Agreements. It relies upon the fact that by the Agency Agreements Chase could not extend the period of insurance of any Liberty policy unless it was identified as an “agreed endorsement”, none of which, it says, was a “contracts commencing endorsement”. Instead, it contends that it was Mr Hingston who was responsible for making the critical underwriting decisions on its behalf and Chase, being a mere “conduit”, had no authority to vary the terms of any policy wording. Hence, it was said that even if Mr Burgess had indicated to Mr O’Reilly that Liberty was offering a policy of insurance which departed from the written terms, Mr Burgess was acting outside of authority.
145 That the Agency Agreements operated to limit Chase’s authority may readily be accepted. However, in ascertaining the scope of Chase’s actual authority, attention must not only be directed to the precise terms of that authority by reference to the Agency Agreements, but also to the evidence given by Mr Hingston. That evidence indicates that Chase was authorised by Liberty to write insurance business for Icon in September 2013 outside the scope of the agreed policy wording, and Mr Hingston accepted as much: see T319–20. Further, it is clear that Chase was authorised to finalise the details of that business for Icon. In such circumstances, it cannot be said that Chase was a “mere negotiator”: see Perpetual Ltd v Myer Pty Ltd [2018] VSC 2 (at [106] per Croft J).
146 Chase’s actual authority extended to the provision of contracts commencing policies, in circumstances where Mr Hingston admitted in cross-examination that between 2012 and 2015 his understanding was that contracts commencing policies provided cover until the end of the defects liability period. On this basis, its intentions are to be attributed to Liberty for the purposes of ascertaining whether there was a common intention held between the parties for the purposes of the Rectification Claim.
Is it permissible to have resort to ostensible authority?
147 However, even if I am wrong about the scope of Chase’s actual authority, Chase had sufficient ostensible authority such that Chase’s intentions, through Mr Burgess, were attributable to Liberty. Before providing my reasons for that conclusion, it is important first to deal with the issue of whether resort to such authority is permissible in a rectification suit; an issue which divided the parties.
148 Liberty’s objection to the relevance of any established ostensible authority was put briefly in its written and oral submissions. It contended that questions of apparent or ostensible authority, which are relevant to contract law, do not arise for consideration in a suit for rectification. Further, it submitted that the enquiry conducted in Igloo Homes was concerned only with the ascertainment of the actual authority of the agent in that case. Icon, on the other hand, sought support from the decision of Davies J in Hawksford Trustees Jersey Limited v Stella Global UK Limited [2011] EWHC 503 (Ch) for the proposition that ostensible authority is relevant. In that case, it was accepted that in determining the “relevant decision maker” in a rectification suit, the general rules of attribution which are applicable to companies and individuals alike must apply. Thus, in an appropriate case one looks not only at actual authority, but also at ostensible authority: at [109], [115] and [127]; see also Clarke, M A, Burling, J M and Purves, R L, The Law of Insurance Contracts (Informa, 5th ed, 2006) (at 390 [14-3B]), citing Kelly-Dempsey & Co v Century Indemnity Co 77 F 2d 85 (10 Cir. 1935 – liability). Hawksford Trustees was subsequently affirmed on appeal (Hawksford Trustees Jersey Ltd v Stella Global UK Ltd [2012] EWCA Civ 55), but the relevance of ostensible authority was not expressly dealt with by the Court of Appeal.
149 Liberty’s submission that rectification, being an equitable remedy, precludes the relevance of any ostensible authority was stated as if it was a self-evident truth, but why this would be the case as a matter of principle is wholly unclear to me, and I was unassisted by any detailed written or oral submissions on the issue. In Hawksford, Davies J accepted that the permissible resort to ostensible authority accords with the “objective” approach to common mistake rectification explained by Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101. His Lordship’s obiter remarks in that case (at 112 [59]) included that, in cases of rectification, “the terms of the contract to which the subsequent instrument must conform must be objectively determined in the same way as any other contract”. The High Court has not expressed a concluded view on Lord Hoffmann’s remarks in Chartbrook, but has suggested that their basis is questionable and do not express the law of Australia as it presently stands: Simic (at 104 [48]–[49] per Gageler, Nettle and Gordon JJ, and at 95 [19] per French CJ). That is because, as will be recalled, in Australia the search in a rectification suit is for what were the parties’ “actual or true common intentions” (Simic at 117 [104] per Gageler, Nettle and Gordon JJ) and it is their “subjective intentions” that matter in this respect: Ryledar (at 657 [269] and 667–8 [316] per Campbell JA, Mason P and Tobias JA agreeing); but see the discussion in Heydon, J D, Leeming, M J and Turner, P G, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (LexisNexis Butteworths, 5th ed, 2015) (at 931 [27-050] and 934 [27-070]).
150 Given that apparent divergence in approach in respect of the support Davies J drew from Chartbrook, might it be said that in Australia – where the equitable rationale of the remedy, being to avoid unconscientiousness, has been reaffirmed (see, eg, Ryledar at 665–7 [305]–[315] per Campbell JA, Mason P and Tobias JA agreeing) – having resort to ostensible authority is impermissible? I do not think so. The authorities referred to by Davies J in Hawksford which informed his Lordship’s conclusion on this issue concerned the principles of attribution of intention to a company: see, eg, Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 (at 506C per Lord Hoffman); El-Ajou v Dollar Land Holdings Plc [1994] 2 All ER 685 (at 705 per Hoffman LJ). Those principles are relevantly uncontroversial. The traditional rules of attribution permit an agent’s knowledge to be attributed to a corporation where the agent is a person so centrally concerned with the corporation’s operations such as to be considered its “directing mind and will”: Lennard’s Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC 705 (at 713 per Viscount Haldane); HL Bolton (Engineering) Company Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 (at 172 per Denning LJ); Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (at 171 per Lord Reid, at 180 per Lord Morris, at 187 per Viscount Dilhorne, and at 190 per Lord Pearson); Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421 (at 445 [95] per Edelman J, Allsop CJ and Besanko J agreeing). Thus, as Bright J said in Brambles Holdings Ltd v Carey (1976) 15 SASR 270 (at 279), in a passage approved by the High Court in Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563 (at 582–3 per Brennan, Deane, Gaudron and McHugh JJ):
Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company.
151 The cases Davies J referred to in Hawksford make plain that such principles include ostensible authority. For example, in El-Ajou, Hoffmann LJ observed (at 705) that “[a] person held out by the company as having plenary authority or in whose exercise of such authority the company acquiesces, may be treated as its directing mind”. This search for a directing mind, in the context of rectification, involves ascertaining the relevant decision maker for the particular transaction in question. This search necessarily calls for the application of settled rules of attribution, which must include those of ostensible authority.
152 When one bears in mind that the rationale of the equity is to prevent unconscientious departure from the true paction, I can see no reason in principle why, if the scope of an agent’s actual authority is relevant to the determination of who is the proper decision maker, then any ostensible authority that is established cannot also be relevant.
Chase also had ostensible authority
153 The evidence sufficiently establishes that Mr Burgess had been held out to negotiate and agree the terms of the changed operation of the policy. The most telling evidence supportive of this conclusion is that Mr Hingston left it to Mr Burgess to work out the details for Icon.
154 In Western Australian Insurance Company Limited v Dayton (1924) 35 CLR 355 (at 376), Isaacs ACJ said:
If a person is constituted or held out or adopted by an insurance company as its agent in respect of any insurance transaction, whether it consists in the making of a contract or the receipt of a premium, or the preparation of a proposal or otherwise, then, except to the extent of any restriction upon his agency which is communicated to or known or reasonably to be inferred by the person with whom the transaction takes place, the transaction stands on the same footing as if it had been transacted in precisely the same circumstances at the head office.
155 It is clear from this statement that such a restriction on that agency must be communicated to or known or inferred by the other contracting party to disprove the scope of the alleged ostensible authority: see also Dal Pont, G E, Law of Agency (LexisNexis Butterworths, 3rd ed, 2014) (at 479–86 [20.39]–[20.47]). There is no evidence before me that either Liberty, or Chase, communicated such a restriction. Indeed, as I will deal with in some detail when considering the evidence in respect of whether there was a formation of a Contracts Commencing Intention, the evidence of Mr O’Reilly was that Mr Burgess reassured him of the operation of the policy, and at no time communicated that his authority was limited.
156 I therefore find that Chase had ostensible authority to provide contracts commencing policies, and thus, on this further basis, its intention is to be attributed to Liberty for the purposes of determining whether Liberty held the Contracts Commencing Intention.
157 Regardless of whether I am right or wrong that Chase’s intention is relevant given it had either actual or ostensible authority, Mr Hingston’s intentions are also highly relevant. On established principles, and on the evidence before me, it is uncontroversial that he was the key decision maker within Liberty in respect of Icon’s insurance programme, notwithstanding my findings above that Chase’s state of mind can also be attributed to Liberty. As will become apparent in the section of these reasons below concerning whether the Contract Commencing Intention was formed, much of the cross-examination of Mr Hingston went to his knowledge and intentions for the purpose of the Rectification Claim, and some of that evidence is critical to the findings I make below in respect of whether Liberty had the requisite common intention.
158 But, should I find that Mr Hingston held the relevant intention, this does not mean that any intention of Chase is irrelevant. I do not intend by this to delve into the issue of whether there has been any “aggregation” of those intentions, as that concept has been considered, and disparaged, in the authorities: see, eg, Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421. Instead, the relevance of Chase’s intention remains critical, notwithstanding any intention found to be held by Mr Hingston, for the reason that, for the purposes of rectification, what is required to establish the requisite common intention is that some form of disclosure of that intention have occurred between the parties: Ryledar (at 660 [280] per Campbell JA, Mason and Tobias JA agreeing); see also Bishopsgate Insurance Australia Ltd v Commonwealth Engineering (NSW) Pty Ltd [1981] 1 NSWLR 429 (at 431 per Yeldham J), discussed by Kiefel J (French CJ agreeing) in Simic (at 103 [43]–[44]). As Campbell JA said in Ryledar (at 667 [315]):
If two negotiating parties each had a particular intention about the agreement they would enter, and their intentions were identical, but that intention was disclosed by neither of them, and they later entered a document that did not accord with that intention, what would be the injustice or unconscientiousness in either of them enforcing the document according to its terms?
159 That disclosure need not be by express statement but it must be the subjective intentions of the parties, viewed objectively from their words or actions: Simic (at 117 [104] per Gageler, Nettle and Gordon JJ)). As I will explain further below, such disclosure may take place by means of the parties inferring certain things of the other by reference to assumed, well established business practices: Franklins (at 660 [281] per Campbell JA). In circumstances where it was agreed that neither Icon, nor Austbrokers, had any dealing directly with Liberty or Mr Hingston, it seems to me that in order to find that such a common intention was held it is necessary to determine whether such disclosure occurred between Austbrokers and Chase.
160 As has been seen above, Icon pleaded the following common intention was held by Icon and Liberty:
At the time that the Liberty 2015/16 Annual TPL Policy was entered into on 18 September 2015, it was the common intention of both Icon and the Icon Group (acting through their agent Austbrokers) and Liberty (acting through their agent Chase) that the Liberty 2015/16 Annual TPL Policy would apply during the Construction Period and the Defects Liability Period of any project:
(a) commenced by Icon or the Icon Group during the Period of Insurance;
(b) declared by the Icon Group to Liberty; and
(c) for which an additional upfront premium was calculated by Chase (as agent for Liberty) based on the total project value and paid by the Icon Group.
161 As in many rectification cases, the difficulty that arises in this case is factual. Hence, the Court is required to work out whether such a common intention was held by reference to a series of contemporaneous written documents and oral communications. As will be seen, this presents a challenge in the present case because of the conflicting affidavit and oral evidence adduced by the parties.
162 It is convenient to commence by summarising the evidence bearing upon the intention of Mr O’Reilly, Chase and Mr Hingston before making findings in respect of that evidence and expressing my conclusions in relation to the issue of common intention. In the course of making those findings, and although the issue is not decisive, I will also deal with whether any inference should be drawn in respect of Liberty’s decision not to call any representatives of Chase.
Evidence as to Mr O’Reilly’s intention
163 Mr O’Reilly deposed that in September 2012 he sought quotes from various insurers and underwriting agencies on behalf of the Icon Group, including Chase. Chase had at that time recently been established by Mr Burgess, whom Mr O’Reilly had known through his previous experience in the industry. As has been explained (at [16]–[17]), the initial dealings between Icon and Liberty, which are agreed, commenced with a series of communications in September 2012. Mr O’Reilly deposed that he had a number of conversations with Mr Burgess at around the time that Chase provided the policy quotation to Austbrokers on 7 September 2012 and after it supplied Austbrokers with the policy wordings on 11 September 2012. As the content of those conversations assumed critical importance at trial, although lengthy, it is convenient to set out the relevant affidavit evidence of Mr O’Reilly in this respect:
39 At around this time in September 2012, Adam and I had a number of conversations in which I said words to the effect that I wanted to obtain a “contracts commencing” insurance program for the Icon Group for both contracts works and liability insurance in which each project was separately declared and the premium paid for each project at declaration. Adam said words to the effect that Chase could do that. …
40 On 11 September 2012, I requested the policy wordings from Chase. I received these from Adam Burgess on the same day. …
164 Mr O’Reilly then set out Condition 8 and Condition 16 of the third party liability policy wording. Condition 8 was for present purposes relatively identical to Condition 8 considered above, and Condition 16 was identical to what became Condition 15 in the Liberty Policy, that is, the run off provision. The critical passage of Mr O’Reilly’s evidence, which was admitted without objection as to its form, was then as follows:
43 I read the wordings and telephoned Adam Burgess. I said words to the effect that I did not understand the reference in Condition 8 of the proposed wordings to the premium being calculated on the basis of the Icon Group’s annual turnover. Adam Burgess said words to the effect that I did not need to worry about Condition 8 as the policy is a run-off policy and told me to look at Condition 16. I then read Condition 16 while I was on the phone with Adam Burgess. Once I had finished reading it I said words to the effect of “OK, so we are agreed that it is contracts commencing”. He said yes.
44 Around this time in September 2012, Adam Burgess and I discussed two projects that the Icon Group had been awarded that were due to commence at or after the expiry of the Pre-2012 QBE Policy, which we envisaged would be covered by Chase’s insurance program. Those projects were known as “Green Square” and “Tip Top”. Adam calculated a premium for those projects, which formed the basis of the premium that was to be payable under the Chase policy for that first year. … In those discussions in or around September 2012, both Adam and I said words to the effect that an additional premium would be payable for each new project commenced during the annual policy period, calculated on the total project value and paid at the time of commencement of each project. Adam said that, with respect to projects up to a value of $50 million, the pricing was as per the annual policy unless there were unusual site conditions. Above that figure, he said that the pricing could vary.
…
47 On 19 September 2012, I emailed Adam Burgess … stating:
“Following on from our many conversations, and my email on Friday confirming the binding of the Tip Top project from Tuesday the 18th, I wish to formally confirm that the terms have been accepted by the client, and our closings shall follow shortly. Tip Top bound from Tuesday 18th of September. Annual was to commence from the 20th of September (expiry of current program), but if it makes your life easier I am happy to close from the 18th to link in the Tip Top project. I confirm that the existing program that we are replacing with Chase Underwriting is ‘Contracts Commencing’, so all existing projects will be run off under the existing cover and we are a ‘Clean On’ process for the placement of the program with your office.”
165 Mr O’Reilly was cross-examined in relation to his account of the conversations with Mr Burgess, particularly the conversation he summarised at [43] of his affidavit. It was suggested that his recollection of the conversation in September 2012 might have confused the Liberty Policy with the Material Damage Contract Works Insurance Policy (MDCW), which was also provided by Chase, but on behalf of ACE Insurance Limited (ACE), not Liberty, but was packaged within the same quotation. In the MDCW policy, there was an express statement, under the heading “Insured Contracts Sections 1(a) 1(b) & 2 – Material Damage” which read “All contracts and/or work of every description commenced by the Insured during the Period of Insurance”. No cognate provision was contained in the liability policy. Mr O’Reilly accepted, when taken to the MDCW policy that cover was provided on a contracts commencing basis. It was put to Mr O’Reilly that the concern which caused him to call Mr Burgess was not about the operation of the liability policy, but was in respect of the apparent discrepancy between this contracts commencing provision in the MDCW policy, and the provision in that policy that was equivalent to Condition 8 in the liability policy, being the provision which provided that the premium was to be based upon turnover.
166 Mr O’Reilly denied that this tension was the reason for his call to Mr Burgess. He maintained that the discussion with Mr Burgess related to the liability policy. He “felt the contract works was much clearer because it actually references the defects period. So that’s why I rang him more specifically with the liability cover”. Although he accepted that he did not specifically advise Mr Burgess that he was referring to the liability policy, he maintained that during the conversation he specifically referenced Condition 8 in that policy, and that Mr Burgess drew his attention to Condition 16, the run off provision (which became Condition 15 in later policies).
167 Further cross-examination of Mr O’Reilly was directed to attempting to show his confusion between the two policies. Mr O’Reilly was taken to certain invoices Austbrokers had issued to Icon in the relevant period, two of which, issued on the same day, related to the MDCW policy and the liability policy respectively. The “Coverage Summary” in each of those invoices contained identical wording. That wording was headed “ANNUAL CONTRACT WORKS” and set out details of the cover referrable to the MDCW policy. These details included an immaterial variation of the “contracts commencing” provision which appeared in the MDCW policy. This was notwithstanding that, in respect of the liability policy, no such provision existed. When taken to these invoices, Mr O’Reilly gave evidence that “we knew it as one programme”; Austbrokers would issue one invoice and one closing instruction for that programme. He accepted that, in effect, Austbrokers was therefore telling the client exactly the same thing in respect of the MDCW policy as with the liability policy, and that they had not sought to separate the “two elements of the quote” given they had received one quote from Chase. A similar issue appears in the “closing instructions”, where the “Coverage Summary” only set out the details referable to the MDCW policy, not the liability policy.
168 As I will detail further below, no contrary account of the conversation was put directly to Mr O’Reilly, and Mr Burgess was not called to give evidence. The cross-examination only went so far as to suggest Mr O’Reilly was confused between the two policies, and that the passage of time, and litigation stress, may have affected his memory. In these latter respects, Mr O’Reilly did not accept that in the intervening eight years he had not had cause to give any thought or attempt to recall the conversation with Mr Burgess. He said he recalled it quite vividly because he felt that he had not initially read the policy wording correctly, which was the reason for him telephoning Mr Burgess. He also denied the suggestion put to him that his memory of the conversation was affected by the knowledge proceedings might be brought against Austbrokers, should Icon fail in this proceeding. He further confirmed, in response to a question from me, that he had an independent recollection, at the time he first gave instructions in relation to that affidavit, of the numerals of Conditions 8 and 16 without being assisted by looking at the policy.
169 During the course of his cross-examination, I asked Mr O’Reilly for some assistance as to why, given his purported misunderstanding as to the operation of the policy wording and the clarification he sought from Mr Burgess, he did not seek to have the policy wording amended to reflect what he had been told. He answered as follows:
I took it on face value of what he told me, and after reading condition 16 I then understood that was the intention of what we had with the contracts commencing. And going back a long way, it was often – whilst we always wanted contracts commencing, sometimes those policies would have options for both. And because Adam confirmed to me that condition 16 apply, I then knew condition 8 did not.
170 As to the endorsements that Chase prepared and were sometimes provided to Austbrokers, Mr O’Reilly deposed that it never concerned him that the endorsements made no specific reference to the defects liability period of the projects. He said that this was because he understood, based on his discussions with Mr Burgess, that by notifying the relevant project and paying a premium based on the full contract value upfront, Icon was obtaining run off cover under Condition 16 of the 2012/13 policy which automatically applied during any defects liability period.
171 Further, Mr O’Reilly’s evidence was that his understanding was confirmed in March 2013 when he obtained a due diligence report prepared by Aon Risk Services Australia Limited (Aon) for Icon’s developer client in relation to an earlier project, which contained an analysis of the Icon Group’s insurance cover under the annual 2012/13 policy Icon had placed with Liberty. That report noted as follows:
Period of Insurance, includes full term of construction, including automatic extension to cover any overrun in anticipated construction period - YES
If an ‘Annual Floater’ policy, period includes the full term of construction, including automatic ‘run-off’ period to cover the works until final completion (ie cover does not cease at the expiry date and is not at the discretion of the insured to exercise an option to obtain run-off cover). - YES.
172 Mr O’Reilly said that soon after reading that report he had a meeting with Mr Burgess, representatives from Icon, Aon and the developer of the earlier project. It was said that Mr Burgess did most of the talking at that meeting, and that he did not say anything to dispute the statements in Aon’s report.
173 Mr O’Reilly gave evidence that his understanding of the operation of the third party liability policies was entirely consistent from September 2012 to December 2018, which were evidenced by the project-specific certificates of insurance issued by Austbrokers to Icon, and the annual quotation slips it sent to Chase. Both of these sets of documents were in evidence. The project-specific certificates of insurance routinely stated that the period of insurance included the defects liability period, including in relation to the Project. As to the annual quotation slips, in each of those slips, under the heading “Liability”, it was expressly stated that liability insurance was sought for indemnity against the legal liability of the insured caused by an occurrence “during the Construction Period and/or the Maintenance/Defects Liability Period happening anywhere in the world in connection with the Contract(s) or Works”. It was also noted that the “Insured Operations” sought were those contracts or works relating to commercial building construction “commenced or declared within the Period of Insurance”. Similarly, all the “Closing Instruction: Tax Invoices” that Austbrokers generated and sent to Chase to accompany payment of the third party liability premiums referred to the same Insured Operations “commenced and declared within the Period of Insurance”.
174 In evidence were a number of emails sent by Mr O’Reilly to various people in relation to Icon’s insurance programme, in relation to which he was taken in cross-examination. It suffices to refer to one. In respect of one of Icon’s projects, Only Flemington, which was covered under the Liberty Policy, Mr O’Reilly had sent an email on 5 July 2017 to Mr Paul Vernall, a contract administrator at Icon. Relevantly for present purposes, that email stated:
The contract works and liability insurance applies for the life of the construction, and the period of insurance seeks to address this by stating “the estimated completion date”, and not an expiry date. The policy will remain in place until Practical Completion is achieved. The certificate can be amended to reflect any revision to the anticipated completion if this assists.
175 It was put to Mr O’Reilly that he was telling Mr Vernall in this email that the liability insurance applied for the life of the construction which is up to practical completion, to which Mr O’Reilly agreed. However, he had also answered that he “was talking to him about the completion date and practical completion. I wasn’t referring to the completion of the policy in its entirety. I’m making no reference to the defects liability period.”
176 In re-examination by counsel for Icon, Mr O’Reilly was asked generally about what he understood to be the “end date of cover” for the Icon projects that were declared and were the subject of the endorsements. In particular, he was asked why he regularly referenced and communicated by reference to a project’s “practical completion date” in his correspondence. Mr O’Reilly gave evidence that, as the defects liability period never varied and was always 12 months for every single job:
… the only variation was in relation to the construction period. So we sought to communicate in relation to the construction period. But there was no need to talk about the defects liability period. … And therefore the insurance responded to the full construction period as well as the defects liability period because the defects liability period was not a variable.
177 Further, as detailed above (at [37]–[38]), it will be recalled that when Icon renewed its annual third party liability policy through Chase in September 2017, being the 2017/18 Policy, Chase placed the cover with a syndicate of underwriters at Lloyd’s rather than Liberty. That policy wording included the Contracts Commencing Endorsement, in terms which Icon now seeks to have endorsed upon the Liberty Policy by way of rectification. Mr O’Reilly said that endorsement was consistent with his intention and understanding throughout his dealings with Chase that the annual contract works and third party liability policies were contracts commencing policies, not turnover policies. He went on:
Soon after I received the policy wording containing [the Contracts Commencing Endorsement], I called James Aldridge of Chase and asked him why [it] had been included. He said words to the effect of “Sorry, it was always meant to be there. It just confirms the way the cover has always been placed.” I said words to the effect of “fine”.
178 Mr O’Reilly confirmed that he understood that Mr Aldridge joined Chase in about mid-2017. In cross-examination, he accepted that he was aware that Mr Aldridge had therefore not been involved in the renewal of any Liberty policy, and he further accepted that he had no basis for assuming what Mr Aldridge knew or did not know about past Liberty annual policies.
179 Finally, in evidence were certain requests for extensions made by Austbrokers to Chase in respect of certain projects. The tenor of such emails was that Mr O’Reilly, at the relevant times, was advising Chase that “cover” for those specified projects was required to be extended due to overruns on the estimated completion dates. It was put to him that those requests were made because he knew that such extensions were required given the cover was only in effect until the practical completion date. Mr O’Reilly rejected that assertion, responding that he did not view the requests for extensions as a requirement given the “maximum construction period”, and said that it was simply prudent to inform Chase as to where the project was at relative to the practical completion date. There was a series of documents in evidence, predominantly being renewal quotations sent by Chase for the annual policies, which showed that that maximum construction period was 36 months. Mr O’Reilly elaborated upon his reliance on the maximum construction period under re-examination. He said that so long as the request for an extension was within that maximum construction period, “Chase never said “No” to any extension or any notification for practical completion that we advised them”.
Evidence as to Chase’s intention
180 Before dealing below with the issue of the inference Icon asks me to draw in respect of Liberty’s decision not to call any witnesses from Chase, I will summarise briefly the most significant evidence that does exist, both from the documentary records and from the affidavit and oral evidence adduced, bearing upon the issue of Chase’s intention.
181 First, is the evidence provided by Mr O’Reilly as to his conversations with Mr Burgess as set out above (at [163]–[164]).
182 Second, is Mr O’Reilly’s evidence of his conversation with Mr Aldridge concerning the Contracts Commencing Endorsement, set out above (at [177]–[178]).
183 Third, is the evidence of the endorsements, and various emails to Austbrokers sent by Chase, in which there is no mention of the defects liability period when cover for the projects declared was confirmed. This included the email sent by Mr Bortone with respect to the Project, in which Mr Bortone stated that “cover is in place from 16th November and ending 10th August 2018”, being the end of practical completion of the Project.
184 Fourth, is the evidence of Mr Hingston discussed above (at [140]–[141]), concerning his conversation in September 2013 in which Mr Burgess informed him of Icon’s request to change the way the policy operated. As I have noted, the conversation did not include reference to the period of cover being limited to the construction period, or that the period of cover did not include the defects liability period for the relevant projects. Further, Mr Hingston said that he left it to Mr Burgess to confirm the nature of the changes with Austbrokers.
185 Fifth, is an email of 17 May 2017 from Nick Vernon of Chase to two Claims Associates at Liberty, copied to Mr Aldridge of Chase, notifying Liberty of an “Incident/New Claim” from Icon, in relation to damage and loss caused by flooding at another site during the annual 2016/17 Liberty policy period. The table in that email detailing the elements of the claim has in one column the question “Is the Policy Contracts Commencing”, and in the corresponding column the answer “Y”.
186 Sixth, was Mr Hingston’s evidence given in cross-examination of his understanding that Chase believed that the Liberty Policy extended beyond the period of insurance and gave run off cover. This evidence was given in response to a request for Mr Hingston to clarify the meaning of a statement in an email of 22 February 2019 from James Tucker, a Senior Claims Specialist at Liberty, to three representatives of Chase. I will deal with that email in more detail when considering Mr Hingston’s evidence below, but for present purposes it suffices to note the following. The email was sent after the Incident occurred, and identified to Chase, in unequivocal terms, that Liberty was of the view that the date of loss occurred after the expiry of the policy period. Within that email the following statement appears:
Chase has verbally indicated to Liberty that it holds a an [sic] opinion different to that of Liberty, with respect to the interpretation of the policy documentation.
Mr Hingston noted that his understanding of this part of that email – that Chase believed the policy responded to the Incident – was based upon meetings Liberty had had internally, “what [Mr Burgess] was saying at the time”, and that Mr Vernon had conveyed to him, within days of the Incident having occurred, his belief that Icon obtained had run off cover under the Liberty Policy.
187 Seventh, is the evidence of Mr Bovington, which I have accepted and which is corroborated by the evidence of Mr Hingston and Mr O’Reilly, that it was generally understood by construction insurance professionals at the relevant time that contracts commencing policies provided cover for the project until works are completed plus the relevant defects liability period.
Evidence as to Mr Hingston’s intention
188 Mr Hingston was employed first as a senior underwriter, and later as Assistant Vice President & Victorian Casualty Manager at Liberty. As I have explained, Mr Hingston was the key decision maker, and the man with primary responsibility for Icon’s insurance programme at Liberty.
189 Like Mr Bovington and Mr O’Reilly, Mr Hingston agreed that it was common knowledge among insurance brokers and underwriters in the construction industry that commercial building projects had a construction period and a defects liability period, and that builders are required to maintain third party liability insurance during the defects liability period. He agreed that he understood, between 2012 and 2015, that it was usual for contracts commencing policies to provide cover for the construction period and the defects liability period. Mr Hingston further agreed that he knew that the premium that Icon paid for each of the contracts declared and endorsed into the policy was calculated based on the value of the whole project including the defects liability period. However, Mr Hingston denied that Liberty had agreed to cover the risk for whole projects declared, including the defects liability period.
190 Mr Hingston deposed that Liberty did not have, in 2012, a standard contracts commencing policy wording as part of the suite of policies which it would offer its insureds, but agreed that from 2015 that Liberty did have such policy wordings. He gave evidence that to the extent that such a policy was requested by a broker, it would have required Liberty to prepare or approve a manuscript policy wording for a particular insured, which it had not in the case of Icon.
191 As I have detailed above (at [140]) Mr Hingston gave evidence that around mid-September 2013, he received a call from Mr Burgess to discuss the Icon account in which Mr Burgess informed him of Icon’s request to rearrange the way the policy operated. Mr Hingston deposed that during the call, Mr Burgess said words to the following effect:
(a) Icon didn’t want to pay for their annual policy up front anymore because they don’t want to commit to a particular estimate of turnover as they did not know which tenders they would win and wanted to mitigate their costs;
(b) Icon wanted to pay a deposit premium of $50 million to start the annual policy off, and then would declare the turnover anticipated from each project as each was secured and it would be declared into the annual program; and
(c) As Icon would be paying for the turnover of each project up front, that project would be covered under the annual policy then in place.
192 In cross-examination, Mr Hingston agreed that the effect of this request was that the relevant projects, being projects for which an additional premium was paid, would be covered under the annual policy then in place for the period of those projects. Mr Hingston agreed that there was no discussion in that conversation of the period of cover not including the defects liability period for the relevant projects. Mr Hingston confirmed that he had agreed to the changes that Mr Burgess requested, and then left it to Mr Burgess to confirm the nature of those changes with Austbrokers, and did not seek to clarify the nature of those changes directly with Icon or Austbrokers.
193 Despite the references to turnover in the passages of Mr Hingston’s evidence above, Mr Hingston agreed that what he meant by turnover was “project value”. In his affidavit, Mr Hingston deposed that the value of contracts commenced by an insured is “essentially the same as the turnover of an insured, except that it is turnover which is earned over an extended period”. He maintained in cross-examination that what Mr Burgess was suggesting was not different to the scheme of cover set out in the policy wording. Instead, he suggested that by virtue of the way in which the premium was calculated under the amended arrangements, the “project value and the turnover is interchangeable”. He said that under that arrangement, “turnover” is simply earned over an extended period. He therefore maintained the position that the Liberty Policy operated as a turnover policy, despite the fact that he agreed that under the policy wording, “turnover” is only calculated on the basis of that portion of the work that an insured completes on a project that happens during any 12-month period.
194 On that basis, it was put to Mr Hingston that the way that the Liberty Policy then operated, post the change effected pursuant to his discussions with Mr Burgess, was not as a turnover policy, but instead as a contracts commencing policy. Counsel for Icon put to him three features that were “entirely consistent” with the Liberty Policy being a contracts commencing policy: first, was the fact that Icon estimated the value of contracts to be commenced rather than annual turnover; secondly, was that Icon paid a premium for each project determined by applying an adjustment rate to the total project value; and thirdly, was that cover extended beyond the term of the annual policy for the projects declared. Mr Hingston assented to each of those propositions, but nevertheless denied that these features were inconsistent with the Liberty Policy being an annual turnover policy. Instead, he gave evidence that the policy did not specifically give an extended period for defects liability, and it did not specify that it was a contracts commencing policy. That is, despite having agreed that the Liberty Policy, as operational, had these three characteristics of a contracts commencing policy, he denied that this meant that it was, in fact, a contracts commencing policy.
195 Further, in respect of the operation of Condition 15, Mr Hingston agreed that he understood at all relevant times from 2012 onwards that, provided Icon gave appropriate written instructions and paid the required additional premium, the policy would continue in full force and effect for the specified contracts until completion, including the defects liability period. He further accepted that if Icon satisfied those requirements, Icon would have that extended cover whether or not Liberty wanted to grant it. He accepted that Icon regularly declared its contracts that would be incomplete at expiry and the value of works under those contracts, and regularly paid a premium to obtain cover for such projects calculated by applying the adjustment rate to the value of the works declared. However, he denied that this meant that Icon was obtaining run off cover under the terms of the annual policy.
196 In his evidence in chief, Mr Hingston deposed that requests for run off cover are usually made where an insured is about to stop renewing their annual policy of insurance (either because it is winding up its business operations or because they are undertaking a wholesale change in the manner in which they secure cover moving forward). He deposed that he “would have been surprised to have received a request for “run off” cover for any project at the commencement of works for that project, where the ultimate cost of that project and the period of insurance allowing for any delays (i.e. weather) is unknown.” However, when pressed in cross-examination, Mr Hingston accepted that Condition 15 did not require the ultimate cost of the project to be declared prior to expiry of the annual policy period, nor did it require the insured to estimate the period of insurance allowing for any delays such as weather.
197 In his evidence, Mr Hingston confirmed that he received Austbrokers’ quotations, at least in 2012 and 2015, and read and signed them. Those quotation slips, as will be recalled, contained the following statement under the heading “Insured Operations”:
Liability
The Insurer(s) shall indemnify the Insured against the legal liability of the Insured to pay damages or compensation in respect of:
(a) injury to any person;
(b) damage to property;
caused by an Occurrence during the Construction Period and/or the Maintenance/Defects Liability Period happening anywhere in the world in connection with the Contract(s) or Works.
(Emphasis added).
198 Mr Hingston agreed in cross-examination that he did not query those documents or inform Chase, Austbrokers or Icon that Liberty would not provide cover on that basis, despite noting that that request “wasn’t consistent with our wording”. In answer to a question from me as to why, notwithstanding that purported inconsistency, he did not think to advise any of the relevant counterparties about it, he said:
We’re working under the advice of the wholesale broker that was – you know, in – in conjunction with the other discussions we were having on the type of programme and deal they were looking to put together for Icon and Austbrokers at the time.
199 He denied, when it was put to him, that the real reason he did not query the reference in the quotation slip to cover being provided for the defects liability period was because he knew that the policies were supposed to operate on a contracts commencing basis.
200 Further, emails were in evidence from November and December 2018, before the Incident, between Mr Hingston and Chase, and from Mr Hingston to Mr Tucker of Liberty. The subject line of each email was “Icon Constructions”. As these emails assumed importance during Mr Hingston’s cross-examination, and in the submissions of the parties, it is important that I set them out in full. The first email, sent by Mr Hingston on 19 November 2018 to Mr Vernon of Chase, was in the following terms:
Hi Nick,
Trust you’ve been keeping well.
I refer to policies placed from the 2012-2016 periods for Icon Constructions.
We have a couple of claims on the go for Icon where we need to be certain of the period these claims should fall into. I’m sure from memory the policy was supposed to be on a contracts commenced basis, but the Chase placing slip and wording does not specify contracts commenced in the either the placing slip or policy schedule.
For instance, we have a claim on the Buranda project where the loss occurred on 18 December 2017 which is past final expiry date, but we have been advised this should be in the 15-16 period as this is when the project was declared to [Liberty].
Given the wording and placing slip does not specify that this is a contracts commencing cover, would you please forward through retail broker’s quote slip or placing slip to Chase that confirm their intention was in fact to place cover on a contracts commenced basis.
Please don’t hesitate to contact me should you wish to discuss.
Regards,
Dan
(Emphasis added).
201 On 7 December 2018, Mr Rob Higginson, Corporate Team Leader at Chase, relevantly responded as follows:
I understand the confusion on this account.
For the 2012-2013 period we wrote this account on a very traditional basis, whereby the Insured declared their full estimated turnover (on a turnover basis and not Contracts Commencing).
From 2013-2016, the placement was changed to a structure whereby the Insured paid a deposit premium to account for the Products Liability exposure and incidental business exposures. The annual in place was still on a turnover basis (not Contracts Commencing). There was a pre-agreed rate to apply per project, which were to be declared before coverage was offered. When declared, each project was added to the annual programme for the entire construction period and the premium was charged based on the full contract value.
If you can tell me the specific projects in questions, I can forward you more precise placement information which may assist you explain this to your claims guys.
202 On 14 December 2018, Mr Hingston forwarded this email to Mr Tucker at Liberty, with the following comments:
Hi James
Refer response received below.
It seems they think the policy is based on turnover during the period with contracts being declared, but if they are attaching separate policies when they come on for the entire period then effectively it is contracts commenced.
They could have an issue whereby we could say that despite the period noted in each endorsement we could rely on the actual policy period.
I will go back to Rob on this, I think they have lost their way little.
Regards,
Dan
(Emphasis added).
203 Mr Hingston set out these emails in his affidavit, and was cross-examined in relation to them. In his evidence in chief, he deposed that at the time of the first email he sent to Mr Vernon he had no reason to revisit the Icon account “in any significant way” in over 12 months, and had not looked back through his file or emails. He characterised the words used in his email to Mr Vernon, in respect of his recollection that the Liberty Policy was to operate on a “contracts commencing” basis, as “loose language”. Finally, he gave evidence that, having subsequently reviewed his file prior to swearing his affidavit, he believed that Mr Higginson’s explanation of the way the Liberty Policy was to operate was accurate. In cross-examination, he said that the statement he “was sure from memory the policy was supposed to be on a contracts commenced basis”, was incorrect. In effect, he gave evidence that “sure from memory” actually meant “unsure from memory” at the time he wrote that email. Mr Hingston denied, when it was put to him, that, aided by the review of numerous documents in preparation of his affidavit, including a number of contemporaneous emails to which he was not a party, and a conferral with his solicitors, he had attempted to create the impression that the Icon policies between 2012 and 2016 were turnover policies, when that is not what he understood them to be at the time.
G.5 Consideration: was there a common “Contracts Commencing Intention”?
204 For Icon to succeed, it must be established that the pleaded common intention was held as at the time that the Liberty Policy was entered into, being 18 September 2015. Given the successive annual policies Icon and Liberty entered into over the five years commencing on 18 September 2012 and ending on 20 September 2017, and thereafter the policies entered into by Icon though Chase, with Lloyd’s and QBE, in 2017 and 2018, it is understandable that the evidence adduced and relied upon by the parties has traversed this whole period. Given their identical form during the dealings between Icon and Liberty, it is, of course, relevant what the parties’ intentions were at the outset of their dealings in 2012. Nevertheless, it must be borne steadily in mind that the time with which I am concerned is the date of entry into the Liberty Policy. Accordingly, any evidence as to events before and after that date is only relevant to the extent it is capable of supporting a finding, as matter of inferential reasoning, as to the parties’ intentions as at the critical time of the paction being struck.
205 Usually in determining contested factual issues in a commercial case, what matters most is “the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts”: Mealey v Power [2015] NSWSC 1678 (at [4] per Pembroke J). Indeed, as Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) (at [22]):
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
206 Nevertheless, in this case, not all of the contemporaneous documents unequivocally point in the same direction. In this case, the content of oral communications assume central importance in ascertaining the true position, thus requiring close attention to be given to the accounts of the two principal witnesses, Mr O’Reilly and Mr Hingston.
207 Mr O’Reilly was an impressive witness. I found him to be honest and careful in giving his evidence; he was willing to make concessions and was responsive in his answers, and notwithstanding the remove from the relevant events by effluxion of time, he appeared to have a clear recollection of the events of which he spoke. To the extent his evidence was sought to be impugned by Liberty, such challenges did not lead me to believe that I should reject any particular aspect of his evidence. My favourable impression as to the manner in which he gave his evidence generally was enhanced by his frank and somewhat self-critical reflections as to his misunderstanding of the operation of the policy at the time he said he contacted Mr Burgess.
208 In response to a question from me, Mr O’Reilly indicated that the preparation of his affidavit was initially led by him after he was interviewed by the solicitors for Icon in respect of his recollections, and was unassisted in that preparation by any contemporaneous documents. He confirmed that he had, in the course of the preparation of his affidavit, adverted to the terms of the Liberty Policy, but indicated that at the time he first gave instructions, he had an independent recollection of Conditions 8 and 16 without being assisted by looking at that policy. I accept this evidence.
209 I further accept, and it was indeed uncontroversial, that Mr O’Reilly understood, at all relevant times, the nature of the standard practice concerning the two types of usual annual cover that was available the construction insurance industry, either on a turnover or contracts commencing basis.
210 As I have noted, Liberty placed great emphasis in its submissions on Mr O’Reilly’s purported misunderstanding of the operation of the policy, in support of its submission that he could not have held the Contracts Commencing Intention. It was first said that, although Mr O’Reilly knew that the third party liability policy referred to turnover, “he was prepared to ignore” that fact because he thought (erroneously) that Condition 15 operated to make the policy “contracts commencing”. It further submitted that in fact, Mr O’Reilly concluded that Condition 8, which referred to calculation of premium based on turnover, simply “did not apply” for the purposes of the Liberty Policy. Insofar as this submission was an attempt to show some confusion on Mr O’Reilly’s part inconsistent with him holding the requisite common intention, I do not accept it. To my mind, the submission amounts to no more than an assertion that Mr O’Reilly’s intention in relation to the operation of the policy was erroneous, not that he did not hold that intention in the form in which he attested. Further, the submission in effect ignores the established fact that the parties’ agreed that Condition 8 did not operate according to its terms.
211 Liberty made two further submissions in respect of Mr O’Reilly’s purported confusion as to the operation of the Liberty Policy. Liberty first submitted that Icon’s contention that Mr O’Reilly understood the Liberty Policy to have covered defects liability periods “fails to appreciate the important distinction between the effect of a contract as executed and the advantages that might be available under a contract depending on what the parties do.” Reliance was placed in support of that submission upon a passage from the judgment of McLelland AJA in Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329. In that case, his Honour, who had written a brief judgment concurring with Sheller JA, observed the following (at 345):
In general, the remedy of rectification of an instrument is available where it is established by clear and convincing proof that at the time of execution of the instrument the relevant party or parties as the case may be had an actual intention (if more than one party, a common intention) as to the effect which the instrument would have which was inconsistent with the effect which the instrument as executed did have in some clearly identified way. In this context “effect” means the legal and factual operation of the instrument according to its true construction, but does not include legal or factual consequences of the operation of the instrument of a more remote, or collateral, kind (for example, its liability to stamp duty).
(Emphasis added in Liberty’s closing submissions).
212 It was that second emphasised statement of McLelland AJA that formed the basis of Liberty’s submission. On that submission, under the Liberty Policy as executed Icon was already permitted to obtain cover during the defects liability period: it could have kept renewing the annual policy; it could have sought an extension of the endorsement beyond the construction period; or it could have sought run off cover in September 2017, when its final Liberty policy expired. It took none of those steps. Accordingly, “the advantages that might be available” under the Liberty Policy were said to be the ability of Icon, in one of the three above ways, to obtain cover for the defects liability period. Although it was not articulated precisely, it appeared the submission proceeded on the basis that it therefore followed that such advantages are merely “remote, or collateral” advantageous “consequences of the operation” of the Liberty Policy, rather than being the legal and factual effect of the Liberty Policy according to its true construction.
213 This submission fails upon close inspection, in particular when it is recognised how the principle referred to by McLelland AJA has been considered in the authorities. Upon setting out that quote from McLelland AJA in its submissions, Liberty omitted the final words, being “(for example, its liability to stamp duty)”. As Tadgell JA observed in Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd [2001] VSCA 2; (2001) 3 VR 526 (at 529–30 [10]) in relation to McLelland JA’s statement:
It is as well to understand that the unintended legal effect that it was held to be appropriate to remove by an order for rectification was not the attraction of a liability of the instrument to stamp duty: that was merely a collateral consequence of the unintended legal operation of the misapprehended meaning of the words that were used.
214 Indeed, as the detailed review of the authorities by the Victorian Court of Appeal in CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11; (2017) 55 VR 62 (Redlich, Tate and Ferguson JJA) demonstrates, the cases in which the principle referred to by McLelland AJA have been applied, have, in many cases, concerned statutory fiscal advantages to be gained from the document as rectified. In that case, the Court of Appeal referred with approval to a passage from the decision of Ashcroft v Barnsdale [2010] EWHC 1948 (Ch), with which Liberty’s reference to “advantages that might be available” under a contract bears a close resemblance. Judge Hodge QC (sitting as a judge of the Chancery Division) in that case had relevantly said (at [16]):
So long as a mistake relates to the meaning or effect of a document (rather than the consequences of, or the advantages to be gained from, entering into it), relief may be available even though the actual words of the document were deliberately adopted by the parties.
(Emphasis added).
215 The Court will not grant rectification of a document “merely because it fails to achieve the fiscal objectives of the parties to it” (at [17] emphasis in original). Relevantly, what is required where the advantage of the contract is in issue is that there is an issue capable of being contested between the parties that will affect their rights. In that connexion, it can be seen that a fiscal advantage devoid of such an issue would truly be a collateral or remote consequence of the type referred to by McLelland AJA: see also Racal Group Services v Ashmore [1995] STC 1151 (at 1157); Wills v Gibbs [2007] EWHC 3361 (at [26] per Rimer J); GE Capital Finance Australasia Pty Ltd v Federal Commissioner of Taxation [2011] FCA 849; (2011) 219 FCR 420 (at [119] per Gordon J).
216 It appears to me that the purported “advantages” pointed to by Liberty are not collateral or remote. The rights of the parties would be affected by a decision to order rectification. If rectification were not ordered, the manner by which the parties agreed to conduct their dealings, where Icon declared and paid a premium in relation to projects commenced during the period of the relevant policy, would not entitle Icon to obtain cover inclusive of the defects liability period, whereas if rectification was ordered, it would. Indeed, the operation of the Liberty Policy in the way Icon seeks to have it rectified goes to the heart of subject matter and purpose of that policy, being the extent to which cover is provided to Icon.
217 The second submission was concerned more directly with the formation of Mr O’Reilly’s intention. In broad summary, it was submitted that Icon cannot establish with precision its own intention through Mr O’Reilly, because there was an error underlying the formation of his intention due to his misinterpretation of the Liberty Policy. Liberty said that Mr O’Reilly’s understanding generally of the third party liability policies it provided Icon, and the evidence adduced in cross-examination of Mr O’Reilly in respect of the MDCW policy, was “so confused as to be almost meaningless”, characterised by “imprecision”, “looseness”, “incoherence” and a “muddled interpretation” of the policy.
218 It will be noticed that the evidence Liberty adduced from and brought to the attention of Mr O’Reilly was directed to establishing Mr O’Reilly’s confusion between the operation of the two policies Icon entered into with Chase. The evidence relied upon said to establish Mr O’Reilly’s confusion I have set out (at [165]–[167]) above. In that respect, the evidence was, at least partially, marshalled for the purpose of casting doubt upon Mr O’Reilly’s account (or at least his understanding) of his conversations with Mr Burgess. As I have mentioned, those conversations are of signal importance.
219 I must say that I initially found it somewhat unusual, given the importance of the operation of the policy to Icon, that Mr O’Reilly did not confirm in writing shortly after those purported conversations, either by email or by some form of contemporaneous note, what had passed between them. In response to a question from me as to why this did not occur, Mr O’Reilly accepted that the conversation was one of some significance, but noted that although it had become significant now, in the light of what Mr Burgess had explained to him, at the time he did not appreciate its significance because that explanation had made the position obvious. However, as I have set out (at [164]) there was an email dated 19 September 2012 from Mr O’Reilly to Mr Burgess, eight days after the purported conversation, which Mr O’Reilly expressly noted in its introductory words was written “following on from our many conversations”. Mr O’Reilly stated in that email that Austbrokers was replacing Icon’s existing insurance with a programme delivered by Chase which was “Contracts Commencing”. Although that email did not, in terms, refer to the specific conversation between Mr O’Reilly and Mr Burgess on 11 September 2020, nor was it immediately contemporaneous, for reasons I will further explain, I am satisfied that it supports the notion that that conversation occurred in the terms described by Mr O’Reilly.
220 I believe Mr O’Reilly’s evidence as to both the conversations between him and Mr Burgess and also his evidence concerning the preparation of his affidavit, and to my mind, this latter evidence supports a finding that he had a clear recollection of the relevant conditions. I also accept Mr O’Reilly was genuine in his answers as to why he did not write a more contemporaneous note of the conversation, and his evidence (at [169]) as to why he did not entreat Chase to amend the policy wordings. Moreover, no contrary account of the relevant conversation was put to Mr O’Reilly, nor was it put to him that his evidence of the conversation was false. In circumstances where, as I will detail below, I have found that Liberty knew the nature of what Mr Burgess’ evidence would have been had he been called, this forensic decision to challenge Mr O’Reilly by highly experienced counsel is of significance: see Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 (at 461–2 [202]–[203] per Redlich, Santamaria and Kyrou JJA), quoting R v MAP [2006] QCA 220 (at [57] per Keane JA).
221 Icon submitted that Mr O’Reilly’s evidence concerning the conversations with Mr Burgess formed the basis of the fact that he held the Contracts Commencing Intention. Nevertheless, as Liberty correctly submitted, the Court should not merely accept what a party says was their intention, but instead consider and weigh admissible evidence probative of that intention, which must be manifested in some way by the parties’ words and conduct. Any conclusion on common intention is a matter of what inferences may be drawn from that evidence.
222 In this respect, much was also made by Liberty of the invoices of Austbrokers sent to Icon and its closing instructions to Chase in support of the submission that Mr O’Reilly’s understanding of the two policies was confused. It may be accepted that Austbrokers’ inclusion of the details of the MDCW policy in those documents is curious, but I do not think that fact bears the consequence that Liberty submits. Both the MDCW policy and the Liberty Policy were provided to Icon in tandem, quoted and invoiced together by Chase. There is no doubt Mr O’Reilly viewed it as essentially one programme. This explains Mr O’Reilly’s evidence that his email to Mr Burgess of 19 September 2012 (see [164] and [219]) was referring to his intention that the third party liability policy was to be a contracts commencing policy, notwithstanding that the email can be read as referring to both policies. Accepting, as I do, that Mr Burgess identified to Mr O’Reilly that the liability policy operated as a contracts commencing policy through the mechanism of Condition 15, it is understandable that Mr O’Reilly proceeded on the basis of treating the elements of each policy somewhat interchangeably. It was not, of course, good practice to provide the client with elements of the MDCW policy in a quotation with respect to the liability policy, but this does not negate the fact that the reason for Mr O’Reilly doing so was his understanding that the policies were in effect “exactly the same” in the relevant respect.
223 Of course, on the instrument as executed, he was wrong. However, it must be borne in mind that Icon’s claim relates to a mistake as to the effect of the Liberty Policy as executed. In Carlenka, the Court was faced with the question whether rectification may granted where the mistake is as to the document’s effect rather than as to its contents. Through a careful review of the authorities, Sheller JA (at 343–4, with whom Mahoney AP and McLelland AJA agreed) held that rectification was available in such circumstances, so long as the common intention for the claimed legal effect was “clearly predominant” over the legal effect of the document on its true construction: citing Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 (at 406 per Hodgson J). Further, his Honour quoted (at 343) with approval the judgment of Thomas J in Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226, a decision of the Full Court of the Supreme Court of Queensland. In that case, Thomas J (with whom Shepherdson J agreed) had said (at 237):
In the present case, by common mistake, the writing failed to express the agreement accurately, and in these circumstances the fact that the plaintiff also read the document erroneously does not matter. Such a double error may frequently arise in a rectification suit.
(Emphasis added).
224 This presents an answer to Liberty’s submission concerning Mr O’Reilly’s confusion. So long as the parties held a common intention as to the legal effect of the document that was inconsistent with its true effect, it matters not that the parties misinterpreted its legal operation. It is that common misinterpretation, contrary to the true agreement, which grounds the equity.
225 I further accept that, provided with the endorsements and email confirmations as to cover sent by Chase, Mr O’Reilly was not concerned that those communications did not refer to the defects liability period because he believed that the effect of the Liberty Policy was that that period was always covered. This belief accords not only with the commercial realties but with his further evidence, which I accept, that the reason for his reference in the emails to Icon to the Liberty Policy remaining in place “until Practical Completion is achieved”, and for Austbrokers’ requests for extensions on certain projects when a practical completion date was looming, was that he believed it was not necessary to refer to the defects liability period; the practical completion date was the only relevant variable. The evidence further establishes that those extension requests were a reflection of Mr O’Reilly’s cognisance of the maximum construction period, which was 36 months for any one project.
226 The evidence further establishes that Mr O’Reilly’s intention was formed immediately prior to Icon’s entry into the policy with Liberty in September 2012, and continued throughout the course of the party’s dealings, including up to and inclusive of the entry into the Liberty Policy. I accept Mr O’Reilly’s evidence that the Aon report (see [171]) reinforced his belief and intention in the operation of the Liberty Policy. Further, Austbrokers’ project-specific certificates of insurance, issued to Icon, its annual quotations slips and its project-specific email declarations, sent to Chase, which all refer to the 12 month defects liability period, are compelling evidence that Mr O’Reilly’s continued intention was that the policy was to operate as a contract commencing policy.
227 Finally, as I noted to counsel for Liberty during their closing address more generally in relation to its submissions in respect of Mr O’Reilly, although Liberty submits that Mr O’Reilly did not hold the relevant intention, it did not directly challenge Mr O’Reilly on the proposition that he subjectively believed that he was obtaining cover inclusive of the defects liability period.
228 Accordingly, I find that Mr O’Reilly held the Contracts Commencing Intention, and that therefore that intention is to be attributed to Icon.
229 As with all parties, I accept that as an industry participant during the relevant times, Chase was aware and generally understood that public and products liability insurance purchased as a contracts commencing policy provided cover for the project until works are completed plus the relevant defects liability period.
230 I accept Mr Hingston’s unchallenged evidence that the conversation between him and Mr Burgess occurred in relation to Icon’s request to change the way the policy operated. However, the evidence does not enable me to make any definitive finding as to whether that conversation occurred in 2012, as Icon would have it, or 2013, as Liberty contends. Although, in the end, for the purposes of the Rectification Claim the date itself is of no moment, should it have occurred in 2012, the timing would have married neatly with the conversations Mr O’Reilly had with Mr Burgess. This would have more readily enabled me to find that the Mr Burgess’ conversation with Mr Hingston supported Chase having held the Contracts Commencing Intention. Notwithstanding this ambiguity as to timing, in view of the fact that I have found that Mr Burgess said what he did to Mr O’Reilly, the conversation he had with Mr Hingston takes on a somewhat different complexion than the way in which Mr Hingston attested. As I have found, Chase had authority to provide contracts commencing cover. Mr Hingston accepted that in their conversation, neither he nor Mr Burgess discussed that the period of cover sought by Icon was limited to the construction period, or that the period of cover did not include the defects liability period for the relevant projects. Further, Mr Hingston had delegated to Mr Burgess the task of “working out the details” of the new arrangement with Icon, in circumstances where he knew that Chase had been discussing those changes with Austbrokers. I am persuaded that the evidence in relation to this conversation, in combination with my findings in relation to Mr Burgess’ conversation with Mr O’Reilly, weighs toward a finding that Chase held the Contracts Commencing Intention.
231 Added to this is the email of 17 May 2017 from Nick Vernon of Chase to Liberty setting out a table detailing an incident/new claim in respect of one of Icon’s projects during the 2016/17 policy period, clearly indicating that Chase was of the view that the policy was a contracts commencing policy. There is no evidence before me that Liberty disputed that characterisation, and it is consistent with Mr Burgess’ stated understanding concerning the operation of the policy.
232 The endorsements and email confirmations of cover sent by Chase to Austbrokers were relied upon by Liberty as convincing evidence that is inconsistent with the claimed common intention. As will be recalled, the email confirmation Mr Bortone sent to Mr O’Reilly on 9 December 2015 stated in relation to the Project that “cover is in place from 16 November 2015 and ending 10 August 2018”, being up to the estimated practical completion of the Project. Given this, it was said that no intention of the Liberty Policy being on a contracts commencing basis can be established such that the Project declared was covered throughout the defects liability period. The same submission was made in respect of the “estimated project period” listed on the Opal Tower Endorsement, signed by Liberty. During cross-examination, Mr Hingston said the “estimated project period” in that and all other endorsements meant “period of insurance”, and that those terms were, in effect, interchangeable. However, Mr Hingston gave evidence that “I guess it was an error on my part” that he didn’t change the wording of estimated project period to read period of insurance. I do not accept this evidence. For similar reasons (which I will detail more fully below in relation to my findings in relation to Mr Hingston’s intention), Liberty can point to no communication from it to Chase, or from Chase to Austbrokers, expressly denying that the cover provided did not include the defects liability period. This is particularly telling when it is borne in mind that all of Austbrokers’ quotations slips and project notifications refer to cover being sought during the defects liability period. The more likely reason for the omission, on the evidence before me, is that the “estimated project period” as referenced in the endorsements was intended by Chase, and Liberty, to refer to an estimated end period for the construction of the relevant project. As Mr O’Reilly attested, and I have accepted, the communications between the parties referred to that period as it was the end date which was subject to variation at any time, subject to it remaining within the 36 months maximum construction period.
233 As to the conversation Mr O’Reilly deposed that he had with Mr Aldridge concerning the Contracts Commencing Endorsement “just confirm[ing] the way the cover has always been placed” (see [177]–[178]), Liberty’s challenge to that evidence in cross-examination was as to Mr Aldridge’s relatively recent employment with Chase, and thus his apparent unfamiliarity with the dealings between the parties. More specifically, the cross-examination was directed towards Mr O’Reilly’s knowledge of those matters. I note, once again, that Liberty did not put to Mr O’Reilly that that evidence was false, nor was a contrary account put forward. Given the basis upon which Liberty cross-examined Mr O’Reilly on this conversation, and my impression of Mr O’Reilly in the witness box, I find that the conversation occurred in the manner deposed to by Mr O’Reilly. I accept, however, that the weight I may give to that conversation is minimal as I accept that, unlike Mr Burgess or Mr Bortone, Mr Aldridge’s involvement in and knowledge about the dealings between the parties was not the subject of any substantive evidence.
234 The evidence of Mr Hingston was that Mr Burgess and Mr Vernon of Chase expressly indicated their view that the policy covered the Incident pursuant to Condition 15. The email from James Tucker to Chase (at [186]), in effect an attempt to pull them into line, supports that evidence. That evidence was unchallenged and I accept it.
235 Finally, I place little weight on the statement made by Mr Higginson of Chase, in his email to Mr Hingston on 7 December 2018 (set out at [201]) in which he stated that the policies between Icon and Liberty were to operate on a turnover basis, not a contracts commencing basis. As can be seen from the foregoing, this statement is inconsistent with the weight of the evidence going to Chase’s intention. Further, similar to the position in relation to Mr Aldridge’s evidence, there was insufficient information in evidence for me to assess the precise nature of Mr Higginson’s role at Chase; he was not a key player, and as a character in this dispute his name appeared quite infrequently. Although that email initially caused me some pause, I find that it is not of significance in forming a conclusion as to Chase’s intention in the light of the volume and weight of the other relevant evidence considered above.
236 For the above reasons, I find that Chase held the Contracts Commencing Intention, and that intention is to be attributed to Liberty.
237 As I have indicated above (at [157]), despite my findings in relation to Chase’s intention, evidence of Mr Hingston’s intention is of course highly relevant given he was the key decision maker within Liberty in respect of Icon’s insurance programme.
238 Mr Hingston came across as a confident and intelligent corporate professional, and by and large was unphased at being in the witness box. His evidence was carefully crafted and although his answers in cross-examination were generally direct and carefully thought through, when faced with inconsistencies in his own evidence, he did not readily make concessions, and, as I will detail further below, at critical points I found that his evidence appeared to be fashioned to suit the perceived forensic exigencies of the moment.
239 In relation to the preparation of his affidavit, Mr Hingston gave evidence he read through certain documents that had been produced to his solicitors in the course of the proceeding, including documents that had been prepared and sent between other people to which he was not a party. He accepted that such documents included those pertaining to Mr O’Reilly’s version of “how he felt the policy should respond”. However, he denied that he could recall that he had had regard to any email correspondence of that nature between Chase and Mr O’Reilly at the time of swearing his affidavit.
240 As I said in Webb v GetSwift Limited (No 5) [2019] FCA 1533 (at [18]) in relation to Leggatt J’s observations in Gestmin:
As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does or does not say. The statement is often made after the memory of the witness has been “refreshed” by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth “may sometimes leak out from an affidavit, like water from the bottom of a well”.
241 I have found Mr Hingston’s accounts of his intention at the relevant times to be artful but unpersuasive. I now turn to the specific aspects of, and make findings in relation to, that evidence.
242 A recurring theme which was of concern to me was Mr Hingston’s attempts, in several respects, to repurpose the meaning of certain words used in various documentation to suit Liberty’s case. Two examples illustrate the point.
243 First is the evidence he gave in relation to his equation of the words “period of insurance” with “estimated project period” in the Opal Endorsement, discussed above. As I have outlined, Mr Hingston noted that “it must have been an error” on his part to have not amended those words. I do not accept that this was his understanding of the term. As a highly experienced professional in the insurance industry, it strikes me as odd that Mr Hingston would have overlooked that the cover Liberty was providing would be left referred to in a way which did not reflect a critical component of that cover, being its end date.
244 Secondly, a perhaps more telling illustration was the reference in his affidavit to the conversation with Mr Burgess concerning Icon’s request to change the manner in which the policy operated. His account of that conversation as deposed to in that affidavit referred to Icon’s request to declare its “turnover” and pay for that “turnover” up front. When pressed during cross-examination, Mr Hingston accepted that he actually meant “project value”. In circumstances where he accepted in cross-examination that he knew what the elements of turnover and contracts commencing policies were, I cannot accept his explanation that contracts commencing is “essentially the same as … turnover”, nor that those terms are therefore “interchangeable”. Indeed, as the cross-examination brought to light, Mr Hingston grudgingly accepted that the elements of how the policy operated bore the hallmarks of a contracts commencing policy, notwithstanding his refusal to accept that is in fact how the policy operated.
245 Another claimed infelicity was his failure to have communicated to Icon, through Chase, that the cover sought in its placing slips was not cover that Liberty was prepared to offer. His explanation that “we’re working under the advice of the wholesale broker”, being Chase, was altogether unpersuasive in this respect. Each year Icon provided Liberty with those quotation slips. Every one of those slips referred to cover being sought during the defects liability period. He confirmed that he had read those slips – indeed in respect of the 2012/2013 policy, the copy in evidence was signed by him. Based on his claimed intention, he accepted in response to a question from me that what was being sought by Icon was inconsistent with what Liberty were offering. But he did nothing about it. I do not accept Mr Hingston’s explanation.
246 I now turn to the emails in evidence from November and December 2018 (see [200]–[202]). As will be noted, there Mr Hingston said in two separate communications that he believed that the policies provided to Icon were placed on a contracts commencing basis. The first email to Mr Higginson of Chase stated that he held that belief “from memory” that this was the case, and the second email to Mr Tucker provided his reasoning, by reference to the operation of the Liberty Policy, as to why this was so. I reject Mr Hingston’s somewhat laboured attempt to explain away these emails. The purported “looseness” of language was far from that. Mr Hingston’s reference to not having recently reviewed the Icon file “in any significant way”, and his subsequent review of relevant documents does not dissuade me from this view. As I noted in Webb v GetSwift Limited (No 5) (at [18]) such refreshment of memory is not always that – the assistance Mr Hingston has gained from his thorough “review” included documents not in his possession at the time of the events in question.
247 In this respect, and although here we are dealing with a subsequent rather than contemporaneous representation, it is apt to recall the statement of Tobias JA in Ryledar (at 642 [185]):
… where the correspondence and/or conduct positively establishes the necessary common intention, then assertions by the party opposing rectification of his or her subjective state of mind which is inconsistent with that party’s outward manifestation of his or her intention, being unexpressed and uncommunicated, is unlikely to trump his or her expressed intention. But this is because that party is unlikely to be believed.
248 Having considered Mr Hingston’s evidence in the context of all the other evidence including the contemporaneous documentation, I am comfortably satisfied that Mr Hingston was prepared to offer cover to Icon on the basis that the defects liability period would be covered.
249 I therefore find that in addition to Chase, Mr Hingston held, at the relevant times, the Contracts Commencing Intention. I make these findings having had regard to s 140(2) of the Evidence Act and the repeated cautions in the authorities as to the need for clear and convincing proof in a rectification suit.
250 Liberty’s failure to adduce any evidence from its agent Chase, particularly Mr Burgess, raises an issue as to whether I should draw an inference that that evidence would not have assisted Liberty: see Jones v Dunkel (1959) 101 CLR 298 (at 308 per Kitto J, at 312 per Menzies J, and at 320–1 per Windeyer J). I accept that such an inference should be drawn in this case. I should emphasise, however, that this conclusion is not determinative of my finding that the parties held the Contracts Commencing Intention; on the evidence before me, that conclusion would have been reached regardless of any inferential reasoning based upon the failure to call any Chase representatives. Nevertheless, I am fortified in the conclusions I have reached that any evidence Mr Burgess would have given would not have assisted Liberty’s case, and thus it is necessary to explain my reasoning. It is convenient to first summarise the evidence adduced as to the communications Liberty had with Chase’s representatives before making findings in respect of that evidence.
The evidence of communications with Chase representatives
251 Mr Hingston confirmed that Liberty and Chase have an ongoing commercial relationship, despite the formal agency agreements between Chase and Liberty having now expired. As I have noted above (at [186]), very shortly after the incident in late December 2018, Mr Hingston had a discussion with Mr Vernon of Chase who had said that he believed that Chase had obtained run off cover under the policy. Mr Hingston confirmed that in March 2019, after the email from Mr Tucker of Liberty was sent to Chase (see [186]), he and other Liberty representatives had met with representatives of Chase, including Mr Burgess, Mr Vernon, and other senior staff at PSC Insurance Group Limited (PSC), in which Mr Burgess reiterated his view that Chase believed that the policy extended to cover the defects liability period. Further, Mr Hingston deposed that he believed that Mr Tucker was also “possibly having conversations with Nick [Vernon] and Adam [Burgess] at the time as well.”
252 Liberty read an affidavit affirmed by Ms Natasha Stojanovich, a solicitor for Liberty. The purpose of the affidavit was said to be to address Liberty’s attempts to contact and obtain information from Chase in relation to Icon’s claim for indemnity in respect of the Liberty Policy.
253 Ms Stojanovich gave evidence in cross-examination that in April 2019, being prior to Icon’s commencement of the proceeding, she had met with representatives of Chase, including Mr Burgess, Mr Vernon and Ms Julia Mitchell, the in-house counsel of PSC, the parent company of Chase. At that time, obviously enough, Mr O’Reilly’s affidavit, in which the purported conversations with Mr Burgess are deposed, had not been filed or served. Ms Stojanovich gave evidence that after that had occurred, she sought Liberty’s assistance in contacting Mr Burgess to ascertain whether any Chase representatives would be willing to meet with her to discuss Mr O’Reilly’s affidavit. Ms Stojanovich said that what followed were several attempts to meet with Mr Burgess, arranged by Mr Noel McCarthy of Liberty, which did not eventuate. Mr Burgess was said to have advised Mr McCarthy that he would not participate in a telephone call with Ms Stojanovich, and referred her to Ms Mitchell.
254 Ms Stojanovich gave evidence that on 26 March 2020, during a phone call with Ms Mitchell, she was informed that she would be unable to speak with Mr Burgess, but that she could discuss any questions with Ms Mitchell alone, who would respond at a later date. Ms Stojanovich then provided Mr O’Reilly’s affidavit to Ms Mitchell on 30 March 2020, along with Icon’s statement of claim. What followed, according to Ms Stojanovich, were attempts, by email and phone, between 6 April 2020 and 23 April 2020, to ascertain from Ms Mitchell whether the Chase witnesses would be willing to speak with her about Mr O’Reilly’s affidavit, and, after Ms Mitchell had advised on 9 April 2020 that it was PSC’s intention to respond, Ms Stojanovich then made several attempts to receive comments from Ms Mitchell in relation to the matters raised in that affidavit.
255 Ms Mitchell and Ms Stojanovich were said to have finally had a phone call on 23 April 2020. Ms Stojanovich deposed that Ms Mitchell: “did not permit me to speak directly to any of the Chase witnesses. Instead, she orally provided me with comments in response to various aspects of O’Reilly’s affidavit”. Ms Stojanovich did not give evidence as to the content of those comments.
256 In cross-examination, the following exchange occurred concerning that conversation:
MR SLATTERY: Ms Mitchell provided you with comments, correct? Comments on Mark O’Reilly’s affidavit?
MS STOJANOVICH: Yes.
MR SLATTERY: And I want to suggest to you that she told you that these were the comments that certain Chase representatives had given her in relation to Mark O’Reilly’s affidavit, correct?
MS STOJANOVICH: Yes. That’s correct.
MR SLATTERY: And she told you that the comments she was giving you in relation to Mark O’Reilly’s affidavit included the comments of Mr Burgess in response to that affidavit, correct?
MS STOJANOVICH: Not specifically. She said that she had sought instructions internally. I don’t recall her specifically saying that. But that was my understanding.
257 In due course, that evidence apparently created some confusion. That was because Mr Slattery had immediately further asked (and after an objection by Liberty, I disallowed) a question in the following terms: “It was your understanding that the comments she was providing you included the comments of Mr Burgess in response to Mr O’Reilly’s affidavit?” I disallowed that question on the basis that my understanding was that she had already assented to that proposition in the last sentence of the passage above. However, during Liberty’s closing submissions, it was put that there was some apparent ambiguity in that sentence, and that Senior Counsel’s express instructions were that I had misunderstood the evidence of the witness. In the light of this, to ensure no unfairness was occasioned to Icon for having disallowed the rejected question, I acceded to an application by Icon for leave to further cross-examine Ms Stojanovich in relation to that evidence. During her further cross-examination, Ms Stojanovich confirmed her earlier evidence that Ms Mitchell had told her that the comments she was relaying were those that certain Chase representatives had given to her in relation to Mark O’Reilly’s affidavit. However, when pressed, Ms Stojanovich denied she understood that the comments included the comments of Mr Burgess in response to that affidavit.
258 There is no need for me to detail the well-known principles. There were explained by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (at 412–13 [165]–[167]). A year earlier in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, Heydon, Crennan and Bell JJ observed as follows (at 384–5 [63]–[64]):
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. …
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.
Should the inference be drawn?
259 The conversations between Mr Burgess and Mr O’Reilly deposed to by Mr O’Reilly were a critical aspect of Icon’s case. The only person within Chase who could comment on those conversations between Mr O’Reilly and Mr Burgess was Mr Burgess. As was explained by Gibbs ACJ, Stephen, Mason and Aickin JJ in Brandi v Mingot (1976) 12 ALR 551 (at 560):
… the foundation of the inference that the absent witness “would not have helped the party’s case” is that the party or his advisers are presumed to know the content of the absent witness’s evidence, otherwise he would not be a witness whom “that party might reasonably be expected to call”.
(Emphasis added and citations omitted).
260 The evidence is clear to me that Liberty had knowledge of the content of what Mr Burgess’ evidence would have been concerning the operation of the Liberty Policy. If he had been called, notwithstanding he had not given a statement, he would not have been called “cold”. I make this finding for three reasons.
261 First, as Mr Hingston confirmed in his evidence, at the time of Icon’s commencement of the proceeding and up to and during the hearing, Liberty and Chase had an ongoing commercial relationship.
262 Secondly, Liberty and its solicitors conferred with representatives of Chase, including Mr Burgess, on several occasions after Icon made a claim for indemnity. In those conferrals, Mr Burgess, and others within Chase, specifically informed Mr Hingston and others within Liberty that they believed Icon had triggered run off cover under Condition 15. Further, the email from Mr Tucker makes clear that Liberty were fully aware of, and obviously highly sensitive about, that belief.
263 Thirdly, against that background, Ms Stojanovich’s evidence further establishes that she understood that the comments relayed to her by Ms Mitchell were the comments of Chase’s representatives about the oral conversations referred to in Mr O’Reilly’s affidavit. My very clear impression from the answer initially given by Ms Stojanovich when she gave it, was that she understood that whatever was conveyed to her by Ms Mitchell in relation to Mark O’Reilly’s affidavit included the comments of Mr Burgess. Although when recalled, she denied that she “understood” that those comments included those of Mr Burgess, I regret to say that I did not find this later denial credible. I am confident Ms Stojanovich did not set out to give misleading evidence; I rather suspect that when this aspect of her evidence in cross-examination became the subject of real focus such as to necessitate her being recalled, her further evidence may have reflected more wishful thinking than accurate recollection. Her accurate recollection was given spontaneously. On the basis of the whole of the evidence, it seems to me far more probable than not that Ms Stojanovich understood that the comments provided by Ms Mitchell included those of Mr Burgess; and, as the evidence establishes, the evidence that Mr Burgess would give, if called, was clear: he believed that the Incident was covered by the run off provision in the policy.
264 In these circumstances, it is hardly surprising Liberty would not want to touch the evidence of Mr Burgess (or anyone in the employ of its agent) with a punt pole. Although, as Liberty submitted, Ms Mitchell erected some obstacles to Liberty’s solicitors gaining access to Mr Burgess, this does not negate the facts that: (a) there was an established and ongoing commercial relationship; and (b) Liberty could have pressed obtaining a statement or subpoenaed Mr Burgess to give evidence at the hearing if it believed his critical evidence would have been consistent with its case. It fully understood what he would say if called – it was just not very helpful.
265 Accordingly, although it is not determinative to my finding that the parties commonly held the Contracts Commencing Intention, I am fortified in my view as to the correctness of that finding by reason of the fact that it is open to infer that Mr Burgess’ evidence would not have assisted Liberty.
G.6 Was the “Contracts Commencing Intention” communicated between Icon/Austbrokers and Chase/Liberty?
266 Although the parties formulated the question in this way, it is important to be clear: although the requirement for that common intention to be “communicated” requires a disclosure of that intention between the parties, it is not a requirement that that intention be expressly stated: Simic (at 117 [104], per Gageler, Nettle and Gordon).
267 Although lengthy, a passage in Campbell JA’s reasons in Franklins (at 660 [281]) is to be emphasised in this respect:
In my view, when that intention relates to the terms upon which they will contract with each other, it is still necessary for them to know enough of each other’s intentions for it to be said that there is a common intention. They might come to know of each other’s intentions in this way through those intentions being directly stated, or they might come to know of them through the various other means by which one person’s intention can become known to another person. Those means can sometimes involve a process of conscious and deliberate inference. Those means can sometimes involve simply perceiving a gestalt in a series of events. Those means can depend to some extent on the people involved sharing a common understanding of how particular bodies of knowledge or markets or social institutions they are operating in work – the experienced surgeon, or the experienced chess player, can sometimes see what another surgeon, or chess player, is seeking to do, in a way that an inexperienced person cannot. What matters for present purposes is that for a negotiating party to perform actions or say words from which the other party can gather his or her intention is itself a form of communication. Negotiation of any contract takes place in a context in which various facts are known or assumed by the negotiating parties. Sometimes, for example, if a contract is negotiated in a context where there are well understood business practices and conventions, and nothing is said about those practices and conventions not applying, it can be legitimate to conclude that both parties to the contract intended to act in accordance with those practices and conventions, even if they did not expressly communicate to each other that they intended to act in accordance with those practices and conventions. This view of what is needed before an intention is a common intention, accords, it seems to me, with the Australian case law since Joscelyne.
(Emphasis added).
268 In some respects it is unnecessary for me to consider the communication issue further in the light of the finding I have made concerning Chase’s intention and Mr O’Reilly and Mr Burgess’ conversation. Nevertheless, as is apparent, that conversation occurred upon the entry into the 2012/13 policy, and, although I have also made my findings in relation to the nature of Mr Burgess’ conversation with Mr Hingston, that latter conversation may have also occurred at that time, or around the time of the 2013/14 policy. Accordingly, there is insufficient evidence of any “express statement” of that intention at the time of the parties entering into the Liberty Policy.
269 However, the implication of the passage set out above is clear in this case. As was common ground, the evidence of Mr Bovington establishes that the parties knew the nature of contracts commencing policies at the relevant time. They knew their elements and knew that the way in which they were conducting themselves was consistent with such policies. Accordingly, their disclosure of those intentions can also be inferred by their mutual understanding that the business practices concerning contracts commencing polices in the insurance industry would apply, in circumstances where there is no evidence that anything was said between the parties about those practices not applying.
270 In such circumstances, in addition to the conversation between Mr O’Reilly and Mr Burgess, the parties knew enough of each other’s intentions for it to be said that they commonly held the Contracts Commencing Intention.
G.7 Did the Annexure “A” Endorsement reflect the common intention of Icon/Austbrokers and Chase/Liberty at the commencement of the Liberty Policy?
271 In Franklins, Campbell JA set out (at 711 [446], Allsop P and Giles JA agreeing) the relevant principles as to the form of a remedy for rectification as follows:
The remedy that is granted is, as with all equity’s remedies, one that will seek to undo, so far as is in practice possible, the departure, that the litigation has shown to exist, from equity’s standards of conscientious behaviour. The way this is achieved, when a remedy of rectification is granted, is by rewriting the contract so that it is no longer departs from the common intention of the parties. The rewriting is done in a quite literal sense — the proper form of order identifies the precise words of the contract that are to be struck out, the precise words that are to be inserted, and where those words are to be inserted: H W Seton, Forms of Judgments and Orders in the High Court of Justice and Court of Appeal 7th ed, vol 2 (1912) London, Stevens and Sons Ltd at 1638–1643 (“Judgments and Orders”). As well the order usually (but not always — for example, Wilson v Registrar-General (NSW) [2004] NSWSC 1220; (2004) 12 BPR 22,667 at [13]–[14]) involves calling in the original document and actually endorsing the order on the instrument that is to be rectified: Seton, Judgments and Orders (at 1644–1645); Re Jay-O-Bees Pty Ltd (In Liq) [2004] NSWSC 818; (2004) 50 ACSR 565 at [74]; Stock v Vining (1858) 25 Beav 235 at 235; 53 ER 626 at 627; Malmesbury v Malmesbury (sub nom Phillipson v Turner) (1862) 31 Beav 407 at 419; 54 ER 1196 at 1201; Johnson v Bragge [1901] 1 Ch 28 at 37. In that way the executed contractual document is no longer able to be a potential source of error and confusion, by appearing to state legal relations that in truth are not as the document says.
272 In Fowler v Fowler (at 103), Lord Chelmsford said that “[i]t is clear that a person who seeks to rectify a deed … must be able to show exactly and precisely the form to which the deed ought to be brought.”
273 As is apparent, this was a case where the parties were aware of the precise words which were employed in the original policy. It was not a mistake as to contents, but as to the policy’s effect. Accordingly, Icon’s proposed wording must be assessed based upon its substance and effect in giving effect to the parties’ common intention. What is required is “that words or expressions or other text inserted into or deleted from the document would give effect to the common intention”: Cape Schanck [2001] VSCA 2; (2001) 3 VR 526 (at 531 [14] per Tadgell JA). There is no requirement that the parties had a common intention as to the precise form of words the parties intended to use: GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 4) (1990) 9 BPR 17,461 (at 17,465-6 per Young J); Muriti v Prendergast [2005] NSWSC 281 (at [137] per White J); Crane v Hegeman-Harris Co Inc [1939] 1 All ER 662 (at 669 per Simonds J). It is for the Court to determine with appropriate clarity both the substance and detail of the precise variation: Bush (at 407 per Hodgson J).
274 Further, as Campbell JA said in Franklins (at 711 [450]):
Crafting a remedy in rectification involves close attention to the words of the document. However, in the prior step of making a finding about a common intention, for the purpose of a rectification order, it is important that the court not confine itself to a narrow focus on particular words of the document. It is the document as a whole that is rectified, and the point of the exercise is that, once rectified, the document will not be contrary to the common intention of the parties to the document.
275 Liberty contended that the Annexure “A” Endorsement does not achieve contracts commencing cover, in the way that cover is defined by Mr Bovington in his evidence. It further contends that the insuring clause is entirely replaced such that the cover under the policy is significantly limited from the cover of the policy as issued. It further says that there is no evidence that the text had been seen by Austbrokers in any form prior to late 2017.
276 I do not accept these submissions. In respect of the final submission, in the light of the above authorities, the fact that Austbrokers’ had not seen that endorsement until 2017 is of no moment. As to the insuring clause, Mr O’Reilly’s evidence was that it was always the intent that the “Product Liability and Completed Operations” cover in the annual Liberty policies responded to liabilities “post practical completion”, and the amendments introduced by the Contract Commencing Endorsement did not represent any substantive change in the Liberty Policy. Mr Hingston agreed (at T346.9–11) that he understood that the annual policies that Liberty provided to Icon between 2012 and 2016 provided cover for Products Liability and Completed Operations. He confirmed that there was no inconsistency in a contracts commencing policy also providing cover for products on hand or operations that were completed prior to the commencement of the annual period. On these bases, I am satisfied that the change to the insuring clause is appropriate and reflects the parties’ common intention.
277 As to the other changes, I have been assisted by the preparation by Icon of a table setting out the relevant changes and references in the evidence to where the intention of the parties corresponds with those changes. The table was not the subject of any substantive challenge by Liberty, and for the reasons submitted by Icon in that table, I accept that the form of the suggested change reflects the parties’ common intention. That table is set out at Annexure A to these reasons.
G.8 Conclusion on the Rectification Claim
278 Icon has succeeded on the Rectification Claim. The instrument should be rectified by adding the Annexure “A” Endorsement.
H CONCLUSIONS ON THE CLAIMS AGAINST LIBERTY
279 As against Liberty, Icon has failed on the Run Off Claim and the Statutory Extension of Coverage Claim, but has succeeded on the Rectification Claim.
280 It will be recalled that in September 2018, Icon entered into the QBE Policy. This policy was also a third party liability policy procured through Chase and was in place for three months from 20 September 2018 to 31 December 2018. The Incident occurred within that period. The QBE Policy had the same policy wording as the 2017/18 Policy and included the Contracts Commencing Endorsement.
281 As I have outlined, as against QBE, Icon seeks a declaration that the Incident reflects, or was the result of, an “Occurrence in connection with” a “Product” of Icon within the meaning of the QBE Policy that occurred within the period of cover of that policy. There were no contested factual issues in respect of the claim against QBE; QBE did not call any evidence and did not cross-examine any of Icon’s witnesses.
282 It is convenient first to set out the relevant parts of the QBE Policy, before turning to the evidence adduced by Icon and the parties’ contentions.
283 The Insuring Clause of the QBE Policy provided as follows:
The Insurer(s) agree to:
1. Indemnify the Insured in respect of all amounts which the Insured shall become legally liable to pay in respect of:
a. Personal Injury;
b. Property Damage;
c. interference with traffic or to property or the enjoyment of use thereof by obstruction, trespass, loss of amenities, nuisance,
1.1 happening during the Construction Period as a result of an Occurrence in connection with the Insured’s Business
1.2 happening during the Period of Insurance as a result of an Occurrence in connection with the Insured’s Product Liability and/or Completed Operations.”
284 It is cl 1.2 with which Icon’s claim is centrally concerned. The definition of “Product Liability and/or Completed Operations”, referred to in cl 1.2, is split, in effect, into two limbs. That phrase is defined to mean “liability for compensation in respect of or arising out of any Product or Completed Operation” (emphasis added). It will be noticed that Icon’s claim is that the Opal Tower and/or its constituent parts is to be classified as a “Product”, and that it thus satisfied the first limb of that definition.
285 The second limb of the definition, “Completed Operations”, is separately defined to mean “Construction Operations that have been completed and handed over to the Principal/Owner and where any maintenance/defects liability periods have expired”. “Construction Operations” is further defined to mean “all contracts for the construction, erection, installation, alteration, manufacture, fabrication, assembly, repair or service of or to tangible property carried out by or for the Insured in respect of which the Insured is or was contractually obligated to effect insurance”.
286 Given the Incident occurred during the defects liability period, it is uncontroversial that the Opal Tower was not a Completed Operation for the purposes of cl 1.2. The dispute between Icon and QBE is solely whether the Opal Tower is nevertheless a Product as defined. “Product” was defined, somewhat elaborately, as follows:
Product shall mean any product or thing (including containers packaging or labelling) sold, supplied, erected, repaired, altered, treated, installed, processed, grown, manufactured, assembled, tested, serviced, hired out, stored, transported or distributed by the Insured including any container thereof (after such goods and/or products cease to be in the possession and/or under the control of the Insured) in the course of the Insured’s Business in or from Territorial Limits, including liability arising out of the Competition and Consumer Act 2010 or similar legislation.
287 Icon called two witnesses who were employed by Icon at the relevant times: Michael Clunie, a Site Manager who worked on the Project, and Jason Coombes, Icon’s Commercial Manager. Icon sought to rely upon their evidence to justify the conclusion that the Opal Tower and each of its relevant component parts were Products within the meaning of the QBE Policy.
288 Mr Coombes gave evidence that Icon is in the business of designing, constructing and delivering buildings. He deposed that when Icon is engaged, it supplies to its clients a completed building which it constructs and erects on the developer’s land. That work includes sub-contracting various works packages to third party sub-contractors. It was said that Icon arranges for all of the materials and component parts to be manufactured in accordance with the requirements of the contract, supplied to the site and erected and installed into the building at the site. Icon was also said to be responsible for testing the work under the contract to ensure it complies with the contract, and repairing any defects.
289 Mr Clunie gave evidence of the manner of constructing, erecting and installing the Opal Tower and its various component parts, and the concrete structure of the Opal Tower more generally. He also gave background evidence of the Incident and the resulting evacuation. He said the structural works at the Opal Tower were a separate package and stage of the works, separate and distinct from other packages and stages. The concrete structure of the Opal Tower was said to consist of various elements, including the columns, slabs, precast panels, reinforced concrete walls and hob beams, which were separately manufactured, assembled and installed by various sub-contractors.
290 As noted above, neither Mr Clunie or Mr Coombes were challenged and I accept their evidence.
I.3 Summary of the competing contentions
291 In summary, Icon advanced the following submissions in support of its construction that the Incident constituted, within the meaning of the QBE Policy, “Property Damage” and was “in connection with” a “Product” of the Icon Group. First, Icon relies on the evidence of Mr Clunie to contend that on their plain meaning the words in the definition of “Product” include the Opal Tower and each of its constituent parts. Thus, it was said that the Opal Tower and each of its parts is a “thing” that was “supplied”, “installed”, “manufactured” or “erected” by Icon in the course of Icon’s business. Icon submitted that the construction for which it contends promotes the contractual object of spreading the risk insured against and that the contrary construction advanced by QBE “strikes fundamentally at the purpose of the policy”. It says that a construction contractor is in the business of producing things which come into existence to form part of the land.
292 Secondly, it contended that if its construction were not adopted, then there would be a “significant and anomalous gap” in the QBE Policy. It said this was because the policy granted third party liability cover to Icon for both: (a) the duration of the construction and defects liability period for any contract commenced during the policy period; and (b) for Completed Operations during the policy period, being projects which had been completed and handed over to the principal/owner and for which the “maintenance/defects liability periods have expired”. It submitted that the Court would not adopt a construction meaning that the QBE Policy would provide no cover for projects that had been completed and handed over to the principal/owner (necessarily prior to the commencement of the policy) but for which the maintenance/defects liability periods have not expired. This would be a “strange and unreasonable result” which cannot have been intended by reasonable business-people in the position of Icon and QBE.
293 Thirdly, it submitted that the interpretation for which it contends is consistent with authority, and relied in particular on the decision of Hargrave J in Metricon Homes Pty Ltd v Great Lakes Insurance SE [2017] VSC 749. The policy in issue in that case defined “Insured’s Products”, in very similar terms to that under consideration in the present proceeding, as follows (at [50]):
Insured’s Products means any goods and/or products (including food and/or drinks) manufactured, assembled, processed, grown, extracted, imported, constructed, erected, installed, altered, repaired, serviced, treated, sold, bottled, labelled, supplied, hired, leased, exchanged, and/or transport[ed] and/or distributed by the Insured including any container thereof (after such goods and/or products cease to be in the possession and/or under the control of the Insured).
294 In that case, Hargrave J held (at [131]) that “the definition of Insured Products should be given its ordinary meaning, and that, in the context of the policy as a whole, the house [constructed by the insured builder], and each of its component parts, was an Insured Product”: see also at [136].
295 As to the text of the definition, QBE first relied upon the ordinary meanings of “Product” and “thing”, by reference to the dictionary definitions of those terms. It submitted that “product” accords broadly with the first noun meaning set out in the Macquarie Dictionary (7th ed, 2017); being “a thing produced by any action or operation, or by labour”. However, it contended that, in this context, it should be understood in the manner described by Clarke LJ in Aspen Insurance UK Ltd v Adana Construction Ltd [2015] EWCA Civ 176; [2015] Lloyd’s Rep IR 511, which I will discuss further below, as “something which, at least originally, was a tangible and moveable item which can be transferred from one person to another”. It said that the ordinary meaning of a “thing” accords with the first noun meaning set out in the Macquarie Dictionary, being “(1) a material object without life or consciousness; an inanimate object”. On these meanings, QBE said that in normal ordinary usage, a building is not a “product” or a “thing”. Rather, it contended that many of the “things” which Icon might be expected to supply “as an adjunct to the construction of a building” may constitute a product, for example carpets, stoves, cooktops, microwave ovens, hot water services and air conditioning units, and that a building cannot be characterised as such a “thing”.
296 QBE further relied upon the absence of the words “built” or “constructed” in the definition of “Product”. It said that to contend that a whole building, or even its constituent parts, is a “Product”, would be curious in the absence of those verbs. It further submitted that Icon’s contention that the Opal Tower was “supplied, erected, installed, manufactured and/or assembled” is a “strain” on an ordinary use of language. Although it accepted that it is common to refer to a building as being “erected”, QBE submitted that Icon did not merely “erect” the Opal Tower; it created the fabric of the building, and in particular the elements of the building that failed during the Incident; primarily concrete and reinforcement steel.
297 QBE sought further support from the reference in the definition of “Product” to the Competition and Consumer Act (2010) (Cth) (CCA) “or similar legislation”. It submitted that this aspect of the definition suggests that the parties treated the expression “Product” as meaning goods the subject of obligations and liabilities under the CCA. The CCA, including the Australian Consumer Law at Sch 2 (ACL), imposes liability for defective “consumer goods”. “Goods” are defined broadly by s 4 of the CCA to include ships, aircraft and other vehicles; animals, including fish; minerals, trees and crops; water; and gas and electricity. It does not include buildings. Section 8 of the ACL states that “[f]or the purposes of this Schedule, goods are taken to be supplied to a consumer even if they are affixed to land or premises at the time of supply”. QBE submitted that these features of the CCA confirm the “obvious” distinction between buildings (premises) and goods.
298 As to the context of the definition of Product within the QBE Policy as a whole, QBE submitted that if the definition is construed to include the Opal Tower and its constituent parts, then, in effect, Construction Operations, which forms part of the definition of Completed Operations, is rendered redundant. It was said to follow that there would have been also no point in separately defining Completed Operations, thus serving to illustrate that the parties agreed to treat separately the risk of liability associated with completed buildings to that associated with the supply of products by Icon in the course of its activities as a building contractor.
299 In further support of this reading it relied upon certain exclusions within the QBE Policy which applied to products. These exclusions relevantly included liability for Property Damage to any Product where such damage is directly caused by a fault or defect in such a Product (Exclusion 5), and for liability for loss of use of tangible property which has been physically damaged or destroyed resulting from the failure of a Product to meet certain warranted levels of performance, quality, fitness or durability (Exclusion 6.2). QBE submitted that to interpret the definition of Product to include a building or its constituent parts would necessitate that cover for Completed Operations would be “substantially confined” in circumstances where the parties did not intend that to be the case.
300 As to authority, QBE submitted that I ought not apply Metricon; the conclusions reached by Hargrave J in the relevant respect were obiter, and the terms of the policy considered in that case were “markedly different” to the QBE Policy. Further, contrary to Icon’s submissions, QBE said that decisions concerning the proper construction of differently worded policies in different circumstances are of limited utility, and the interpretation of the definition of “Product” falls to be decided by reference to the terms of the policy as a whole. Instead, it relied upon the decisions of Aspen Insurance and Bigby v Kondra [2017] QSC 37, notwithstanding that those decisions were considered, but not followed, in Metricon (at [122]–[128] per Hargrave J).
301 QBE’s well-crafted submissions overcomplicate the construction issue.
302 I have set out the relevant principles above (at [53]–[64]) and there is no need to repeat them. As to the text of the definition, on an ordinary reading of the words “product” and “thing”, it appears plain to me that the Opal Tower and its constituent parts satisfy the definition. Although it is true that the definition qualifies the ordinary meaning of those words by requiring the product or thing be dealt with in the manner of one of the following listed past participles, to my mind this reinforces my conclusion; I simply cannot see how the Opal Tower and its constituent parts cannot be “supplied”, “installed”, “manufactured” or “erected”. Icon is a construction company. Such companies erect buildings, and in so doing they supply to their clients a completed building, which involves it installing many components which have been manufactured by a number of different sub-contractors. The absence of the words “built” or “constructed” are therefore of no moment. Although it may be accepted that the definition commences as “Product shall mean” (emphasis added), which indicates that the definition is exhaustive (see, eg, Cherry v Steele-Park [2017] NSWCA 295; (2017) 96 NSWLR 548 (at 571 [97] per Leeming JA, Gleeson and White JJA agreeing)), the list of words included easily accommodate the Opal Tower and its constituent parts. Further, I do not see how the Opal Tower cannot be classed, on the ordinary meaning of product, as “a thing produced by any action or operation, or by labour” – a “thing” is hardly a narrow conception.
303 I reject QBE’s contention that the only relevant “things” that Icon would be expected to supply as a product are those that are “an adjunct to the construction of a building”. A resort to the ordinary and natural meaning of product and thing “must depend on the subject matter in connection with which it is used and on its collocation”: Australian Temperance & General Mutual Life Assurance Sociey v Howe (1922) 31 CLR 290 (at 302 per Isaacs J). Thus, it is hard to see, for example, how such an “adjunct” may be “erected”, in the ordinary sense of that term. In the context of an insurance policy issued to a construction company which delivers large-scale building projects, it is hard to imagine what other product or thing, besides a building, would be erected such to fall within the meaning of the definition.
304 I further reject QBE’s reliance on the reference within the definition to the CCA and the ACL. As QBE correctly noted, the phrase “including liability arising out of the Competition and Consumer Act 2010 or similar legislation” sits awkwardly with the rest of the definition. Nevertheless, it submitted that this aspect of the definition suggests that the parties treated the expression “Product” as meaning goods the subject of obligations and liabilities under the CCA. In oral submissions, it was further put that the reference to the CCA directs attention to the sorts of things that are acquired by consumers, being goods and services, not buildings. With respect, I do not find these submissions persuasive. The phrase is introduced with the word “including”, which serves merely to illustrate that the goods in the CCA are a species of the same genus of product there defined.
305 As to context, QBE contended that for the Opal Tower to fall within the meaning of Product would do violence to the precise distinction drawn between Products and Completed Operations. I do not accept that submission. It will be recalled that the definition of “Products Liability and/or Completed Operations” draws a distinction between two concepts: Products and Construction Operations, being Completed Operations that are not within the defects liability period. It is to be recognised that cl 1.2 provides Icon cover in respect of property damage as a result of an occurrence in connexion with the “Products Liability and/or Completed Operations” (emphasis added). That composite phrase is itself further defined, somewhat unhelpfully, as “liability for compensation in respect of or arising out of any Product or Completed Operation” (emphasis added), where the use of the grammatical tool “and/or” is not present. QBE submits that “and/or” in cl 1.2, properly understood, means “both or either”, which confirms that Products and Completed Operations are distinct concepts, and thus to construe Product as including the Opal Tower would make the definition of Construction Operations redundant. It may be accepted that the concepts are distinct, being, as they are, separately defined. But this does not have the result for which QBE contends. Completed Operations is defined to excise construction contracts for which the defects liability has expired. This explains why the definition of Construction Operations is couched in terms of the “contract” for such operations, not the resultant object created by the performance of such a contract. Accordingly, it does not render redundant the definition of Construction Operations to construe the meaning of Product to include the Opal Tower or its constituent parts.
306 Further, I do not consider that construction is inconsistent with the fact that liability for Products, as defined, were the subject of certain exclusions within the QBE Policy, but not for the reasons articulated by Icon. Icon says that the exclusions do apply to Completed Operations, subject to the qualifications within those exclusions. For the reasons outlined above, that the Opal Tower is to be considered a Product within the meaning of the QBE Policy does not mean that it is to be equated with a Construction Operation, as defined. Accordingly, read fairly, it would not make sense for Exclusion 5, for example, to apply to a “contract for the construction” of tangible property, and further that that exclusion would only to apply to the extent that the damage is caused to a part of such a “contract”.
307 I now turn to the authorities relied upon by the parties. QBE attempted to qualify the ordinary meaning of “product’ by reference to the decision of Aspen Insurance. The dispute in that case arose out of construction work in Liverpool. The defendant company was responsible for concrete and drainage works, including the construction of concrete bases for tower cranes that were to be used in the course of the work. A heavy crane collapsed, and all experts were agreed that the loads imposed on the bases were higher than those considered in the design. The defendant company’s public liability policy excluded liability in connexion with Products. The claimant applied for a declaration of non-liability under the policy. On appeal, the Court of Appeal affirmed the reasoning of the primary judge that the concrete base constructed by the insured was not a Product. QBE relied upon the following statement of Clarke LJ (with whom Gloster and Vos LLJ agreed), in particular the emphasised portion, in support of its construction (at 518 [42]):
The meaning of ‘a product’ may elude precise definition, depending, as it does, on whether the item in question is what you would really and naturally describe as a product. Without attempting a precise definition, I would regard a hallmark of a product, in this context, as being that it was something which, at least originally, was a tangible and moveable item which can be transferred from one person to another; and not something which only came into existence to form part of the land on which it was created. I appreciate that this analysis could be said to introduce indicia which the definition does not contain and, thus, open to an objection similar to that which I expressed in para 32 above. It is, however, in my view, a more reliable guide to the correct answer to the basic question as to the meaning in this context of a product.
(Emphasis added).
308 It can be appreciated that this analysis appears to have been informed by the consideration that the definition in that case ends with the words “only after such item has left the Insured’s care, custody or control”. A similar qualification appears in parentheses in the QBE Policy definition of Product (“after such goods and/or products cease to be in the possession and/or under the control of the Insured”). Earlier in his Lordship’s reasons, Clarke LJ summarised the primary judge’s reasons as follows (at [28]):
The concrete base was, he held, not a product with a small “p”. It was not one of the Adana range of products; you could not buy it; it was created at the customer’s premises and not at a factory. A customer would see the activity of creating the base as part of the work on site and not as a product like a boiler to be ordered and sent to the scene.
309 Aspen’s criticisms of that reasoning were accepted on the basis that the definition did not provide that absent any one or more of the indicia there identified by the primary judge (part of a range/buyable separately/created offsite) an item cannot be a Product. I agree with Hargrave J’s analysis in Metricon (at [126]–[127]) of his Lordship’s reasoning; I do not agree that a hallmark of a product is something which is a “tangible and moveable” item as opposed to something which “only came into existence to form part of the land on which it was created”. In any event, such an interpretation of the ordinary meaning of “product” in the policy in issue in Aspen cannot be determinative of the policy in issue in this case; this is especially so in circumstances where the definition of Product in the QBE Policy is of such broad scope to encompass “any product or thing”.
310 Bigby is of little assistance. The defendant in that case argued that it was entitled to deny indemnity in reliance on an exclusion concerning “Damage to products”, on the basis that the plaintiffs’ house was a “product”. Daubney J set out the dispositive reasoning of Clarke LJ in Aspen, and, without any analysis, adopted it as his own to find that the house in that case was a product. Further, his Honour’s conclusion was reinforced by reference to certain other provisions that are not analogous with those found in the QBE Policy: see at [177]–[179].
311 The case of Metricon supports the construction to which I am attracted. It is to be noticed that the definition of “Product” in that case bears a strikingly close resemblance to the definition of that term in the QBE policy. The policy in that case also included a very similar definition of Completed Operations and Construction Operations. While I accept that Hargrave J’s relevant conclusion in that case was obiter, and that each contract must be construed according to its own terms, it is also to be borne in mind that the same words used in similar policies should be given a consistent interpretation where possible: Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 (at 394 per Kirby P); McCann v Switzerland Insurance [2000] HCA 65; (2000) 203 CLR 579 (at 601 per Kirby J).
312 I should also note that Apsen and Bigby concerned the proper construction of the term “product” for the purposes of an exclusion clause, where the definition in issue here concerns the insuring clause. For example, Clarke LJ in Aspen said that “I, also, bear in mind in reaching this conclusion that the clause in question is an exceptions clause, which supports a narrow rather than a broad interpretation”. That principle of interpretation is well established (see, eg, C.E. Heath Underwriting & Insurance (Australia) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 (at 541 per Deane J)), but it is not apposite in the present case. Further, for the reasons I have explained, I reject QBE’s submission on this point that it is in fact Icon’s construction which “constrains the scope of cover by expanding the operation of [the] exclusions.” I further note, for completeness, that Metricon itself concerned an exclusion clause, but that is also of no moment. I have found that the Opal Tower and its constituent parts constitutes a Product as defined independent of that authority; it merely fortifies my conclusion.
313 Although it is not determinative, if QBE’s construction were correct it might be thought to be somewhat odd result. In circumstances where contracts commenced during the policy period would be covered during their defects liability period, and projects completed, but not necessarily commenced, during the policy period would be covered if the defects period had expired, it seems contrary to the parties’ intent that there would be no cover for damage occurring on projects that had been completed during the policy period but for which the defects liability period had not expired.
I.5 Conclusion on the claim against QBE
314 For these reasons, I find that the Incident was “in connection with” a “Product” of the Icon Group, with the consequence that the Incident reflects, or was the result of an Occurrence “in connection with” the “Insured’s Product Liability” within the meaning of Insuring Clause 1.2 of the QBE Policy. Accordingly, the claim against QBE succeeds.
315 The parties should provide short minutes to reflect these reasons (and reflecting any agreement or disagreement as to costs) within seven days.
I certify that the preceding three hundred and fifteen (315) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:
ANNEXURE A
ICON’S OVERVIEW OF AMENDMENTS SOUGHT AS SET OUT IN THE CONTRACTS COMMENCING ENDORSEMENT
Item | Text | Evidence of Common Intention |
(A) | The Schedule is amended to include: Construction Period Maximum Construction Period: 36 months any one Contract including any testing and commissioning period Maximum Maintenance/Defects Liability Period: 12 Months any one Contract | This amendment has the effect of defining the “Construction Period” (which is used in Amendment (B)) and prescribing the contract limits for the “construction period” and “defects liability period” for contracts that will be covered by the Policy. The “Maximum Construction Period” of “36 months any one Contract including any testing and commissioning period” and the “Maximum Maintenance/Defects Liability Period” of “12 months any one Contract” both appeared in the renewal slips issued by Chase [CB tab 22; p.507; tab 23 p.515; tab 37 page 767; tab 73 p.974]. Mr Hingston confirmed in cross-examination that “We had agreed that we would cover projects up to 24 months under – under the policy”, which meant that projects with a construction period of up to 24 months were automatically covered at the annual adjustment rates, irrespective of contract value [T300:1-21; T343:10-47]. When it was suggested to Mr Hingston that the relevant parameter was 36 months rather than 24 months, he readily conceded that could well be the case [T344:26-33]. Contemporaneous documents and the evidence of Mr O’Reilly confirm that the relevant limitation was 36 months, not 24 months [CB tab 37 page 767; T141:1-19; T194:21-23; T213:18-215:19]. Mr Hingston’s evidence also confirms that this was a feature of a “contracts commencing” policy, in which the premium is based on the total contract value of contracts commenced during that annual year and cover is provided for the duration of those contracts, up to a specific limit within the policy [T300:5-12]. Mr O’Reilly also gave evidence to similar effect in relation to the 36 month construction and 12 month “contractual limitations”: [T212:10 – 215:20]. Mr Hingston said there was no limit on the defects liability period, but contemporaneous documents and the evidence of Mr O’Reilly suggest that in fact there was a limit of 12 months: [CB tab 22; p.507; tab 23 p.515; tab 37 page 767; tab 73 p.974; T213:18-215:19]. The contemporaneous documents and the evidence of Mr O’Reilly should be preferred over the evidence of Mr Hingston. Accordingly, Amendment (A) reflects the parties’ common intention. |
(B) | The Insuring Clause is amended to read as follows: The Insurer(s) agree to: 1. indemnify the Insured in respect of all amounts which the Insured shall become legally liable to pay in respect of: (a) Personal Injury; (b) Property Damage; (c) interference with traffic or to property or the enjoyment of use thereof by obstruction, trespass, loss of amenities, nuisance, 1.1 happening during the Construction Period as a result of an Occurrence in connection with the Insured's Business; 1.2 happening during the Period of Insurance as a result of an Occurrence in connection with the Insured's Products Liability and/or Completed Operations. | Insuring Clause 1 of the 2015/16 Liberty TPL Policy, in its unrectified form, provides [CB tab 80 p.1020]: “The Insurer(s) agree to: 1. Indemnify the Insured in respect of all amounts which the Insured shall become legally liable to pay in respect of: 1.1. Personal Injury; 1.2. Property Damage; 1.3. interference with traffic or to property or the enjoyment of use thereof by obstruction, trespass, loss of amenities, nuisance, happening during the Period of Insurance as a result of an Occurrence in connection with the Insured's Business.” This includes cover for Products Liability and Completed Operations, which has its own separate and distinct “Limits of Liability” set out in the Schedule to the 2015/16 Liberty Policy, as follows [CB tab 80 p.1018]: “$20,000,000 any one Occurrence unlimited in the aggregate during the Period of Insurance but limited to: 316 $20,000,000 in the aggregate during the Period of Insurance arising from Products Liability and/or Completed Operations.” Mr O’Reilly gave evidence that it was always the intent that the “Product Liability and Completed Operations” cover in the Annual Liberty Policies responded to liabilities “post practical completion”, and the amendments introduced by TPL008 to the 2017/18 TPL Policy did not represent any substantive change in the Policy, as “I understood that was the intent all along” [CB tab 118 p 1282; CB tab 80 p1018; T215:28- 317 216:30]. Mr Hingston agreed that he understood that the Annual Liberty Policies that Liberty provided to Icon between 2012 and 2016 provided cover for Products Liability and Completed Operations [T346:9- 11]. He confirmed that there was no inconsistency in a “contracts commencing” policy also providing cover for products on hand or operations that were completed prior to the commencement of the annual period [T306:1-3]. Accordingly, Amendment (B) effects: 318 (1) substantive amendment to Insuring Clause 1 to provide for cover on a “contracts commencing” basis during the construction period and defects liability period (ie, during the “Construction Period”) in accordance with the parties’ common intention; and 319 (2) no substantive amendment to Insuring Clause 1 with respect to the cover for Products Liability and Completed Operations, given that both parties considered that cover for Product Liability and Completed Operations was provided under the 2015/16 Liberty Policy in any event. |
(C) | 8. Adjustment of Premium The premium for this Policy is provisional and is based on the estimated value of works to commence during the Period of Insurance. The Insured shall, as soon as practical after the expiry date of this Policy, declare to the Insurer(s) the actual total value of works for all contracts that commenced during the Period of Insurance. An adjustment premium shall be determined by determining the difference between the provisional premium and the sum of the agreed rate applied to the actual total value of works commenced during the Period of Insurance. The adjustment premium paid to the Insurer(s) or refunded by the Insured(s) as the case may be. Notwithstanding the above, the maximum allowable return premium will be 25% of the provisional premium paid. | Condition 8 of the 2015/16 Liberty Policy, in its unrectified form, provides [CB tab 80 p.1026]: “The premium for this Policy is provisional (unless otherwise agreed) and is based on the estimated Turnover for the Period of Insurance. The Insured shall, as soon as practical after the expiry date of this Policy, declare to the Insurer(s) the Turnover during the preceding Period of Insurance. An adjustment premium shall be determined by calculating the difference between the provisional premium and the sum of the agreed rate applied to the Turnover. Notwithstanding the above, the maximum allowable return premium will be 25% of the provisional premium paid.” Amendment (C) effects only one substantive amendment: the premium is to be based on the value of works commenced during the Period of Insurance, rather than on Turnover. That plainly accords with the common intention of the parties [O’Reilly [21], [26], [41]-[43], [100(a), (b) & (d)]; T299:43-300:21; T306:18-307:7: 308:22-44; 309:31-42; 310:29-40]. |
(D) | 15. Run Off This Policy will continue in full force and effect at terms and conditions prevailing immediately prior to expiry for all incomplete contracts as at date of expiry until completion of those contracts including any testing and/or defects liability and/or maintenance periods subject to the Maximum Construction Period noted in the Schedule. On expiry of the Period of Insurance the Insured is required to provide the Insurer(s) with a list of all Insured Contracts that commenced during the period of insurance and additional premium is to be calculated as per Condition 8 (Adjustment of Premium). Any contracts not declared to Insurers will not be covered by this Policy. | Condition 15 of the 2015/16 Liberty Policy, in its unrectified form, provides [CB tab 80 p.1028]: “Subject to written instructions from the Insured to the Insurer(s) prior to expiry of the Period of Insurance, this Policy will continue in full force and effect at terms and conditions prevailing immediately prior to expiry for all incomplete contracts as at date of expiry until completion of those contracts including any testing and/or defects liability and/or maintenance periods. The Insured is required to provide the Insurer(s) with a list of contracts requiring Run Off and additional premium is to be calculated on expiring rates applied to value of works declared for completion of projects after expiry of the Period of Insurance.” The textual amendments to Condition 15 are sought on the assumption, contrary to Icon’s primary case, that Condition 15 is ineffective to provide cover on a “contracts commencing” basis. The amendments are as follows: (1) Instead of providing for Icon to notify the Insurer(s) of “contracts requiring Run Off”, Condition 15 provides for Icon to notify the Insurer(s) of “all Insured Contracts that commenced during the period of insurance”. The evidence shows that is what Icon in fact did, all throughout the operation of the Annual Liberty Policy, and in doing so Icon/Austbrokers and Liberty/Chase understood and intended that Icon was obtaining cover for such contracts under the Policy. 320 (2) There is no substantive change to the requirement for Icon to provide written notification to Liberty of contracts commenced and declared by it for which it seeks cover. The second part of amended Condition 15 makes it plain that Icon must still provide those instructions, and accordingly, nothing turns on the deletion of the words “subject to written Instructions from the Insured to the Insurer(s)” in the first part of Condition 15. (3) Condition 15 provides that the premium is to be calculated by applying the agreed rate to the value of works declared, which is in fact how Icon and Liberty calculated and paid the premium for each project commenced and declared to Liberty [O’Reilly [21], [26], [41]-[43], [100(a), (b) & (d)]; T299:43-300:21; T306:18-307:7: 308:22-44; 309:31-42; 310:29-40]. (4) Condition 15 is to be amended to include: “Any contracts not declared to Insurers will not be covered by this Policy.” That amendment reflects the basis of cover (ie, contracts commencing, rather than turnover). (5) The addition of the words “subject to the Maximum Construction Period” is a reference to the matters addressed in Amendment (A) above. |
(E) | The following clause is deleted in its entirety: Turnover Turnover is defined as the total value of work completed during the preceding twelve months period for the Business and/or Activities of the Insured to which this Policy applies, including the value of principals supplied materials where appropriate. | The evidence confirmed that the parties never intended to conduct themselves with reference to Icon’s “Turnover” as defined in the Policy [O’Reilly [21], [26], [41]-[43], [100(a), (b) & (d)]; T299:43-300:21; T306:18-307:7: 308:22-44; 309:31-42; 310:29-40]. It is appropriate for the definition of Turnover to be deleted. |
