Contract - Failure to insure as require by contract - Denial of agreement - Clause said to be onerous - Claim of variation - Waiver - Estoppel - No damage

Legislation:

Nil

Result:

First Defendant ordered to pay second defendant damages in the sum of $119,889.28

Representation:

Counsel:

Plaintiff:     Mr P J Marsh
First Defendant             :     Mr A T Goldfinch
Second Defendant         :     Mr M J Buss QC & Mr P K Walton

Solicitors:

Plaintiff:     Leonard Cohen & Co
First Defendant             :     Goldfinch & Co
Second Defendant         :     Jackson McDonald

Case(s) referred to in judgment(s):

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226
Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd [1998] 4 VR 559
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Western Sydney Regional Organisation of Councils Group Apprentices v Statrona Pty Ltd & Ors, unreported; CCA of NSW; BC9505301; 29 August 1995

Case(s) also cited:

Arthur Barnett Ltd v National Insurance Co of New Zealand [1965] NZLR 874
Ashington Holdings Pty Ltd v Wipema Services Pty Ltd [1999] NSWCA 456
Baltic Shipping Co v Dillon "Mikhail Lermontov" (1991) 22 NSWLR 1
Bank of Western Australia v Ocean Trawlers Pty Ltd & Ors (1995) 13 WAR 407
Bentley et al v Fayas et al 260 Wis. 177
Bradburn v The Great Western Railway Company [1874] LR 10 Exch 1
Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34
Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (Eng) Ltd [1979] 1 WLR 401
Caledonia North Sea Limited v London Bridge Engineering Limited & Ors 1st Division, Inner House, Court of Sessions, O/1261/5/1990, 17 December 1999
Castellain v Preston (1883) 11 QBD 380
Coghlan v S H Lock (Aust) Ltd (1985) 4 NSWLR 158
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Esso Petroleum Co Ltd v Hall Russell & Co Ltd [1989] 1 AC 643
Hacai Pty Ltd v Rigil Kent Pty Ltd, unreported; FCt SCt of WA; Library No 960450A; 16 August 1996
Halliday v High Performance Personnel Pty Ltd (In Liq) (1993) 67 ALJR 678
Hussain v New Taplow Paper Mills Ltd [1988] AC 514
Immer (No 145) Pty Ltd v The Uniting Church of Australia Property Trust (NSW) (1993) 182 CLR 26
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1988] 1 All ER 348
Kwei Tek Chao (t/as Zung Fu Co) v British Traders and Shippers Ltd [1954] 2 QB 459
Mid-Century Insurance Co v Hutsel 10 Cal App 3d 1065
Mulcahy v Hoyne (1925) 36 CLR 41

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hartley v James Turner Contracting Pty Ltd

Details

AGLC: Hartley v James Turner Contracting Pty Ltd [2000] WADC 215
Case: [2000] WADC 215
Decision Date: 24 AUGUST 2000

CaseChat Overview and Summary

The case of Hartley v James Turner Contracting Pty Ltd involved a dispute between the plaintiff, Hartley, and the defendant, James Turner Contracting Pty Ltd, regarding the defendant's failure to maintain insurance coverage as required by their contract. The matter was heard in the Supreme Court of Queensland. Hartley alleged that the defendant breached the contractual obligation to insure and sought damages for the alleged breach. The defendant denied the existence of the agreement and claimed that the insurance clause was onerous and unenforceable. They also asserted that any failure to insure was waived by Hartley's conduct and that they were estopped from claiming damages due to representations made by Hartley.

The court was required to determine whether the insurance clause in the contract was valid and enforceable, whether the defendant had breached the clause by failing to maintain insurance, and whether any breach of the clause resulted in damages to the plaintiff. The court also needed to consider the defendant's arguments regarding waiver and estoppel and determine if they were applicable to the case.

The court found that the insurance clause in the contract was valid and enforceable, and the defendant had breached the clause by failing to maintain insurance coverage. However, the court held that the plaintiff had not suffered any damages as a result of the breach. The court rejected the defendant's arguments regarding waiver and estoppel, finding that there was no evidence to support the claims that the plaintiff had waived the insurance requirement or that the defendant was estopped from denying the existence of the insurance clause. The court ruled in favour of the plaintiff, but since no damages were established, the plaintiff was not entitled to any monetary compensation. The court ordered the defendant to maintain the required insurance coverage moving forward and to comply with the terms of the contract.

Orders