Waterman v Gerling Australia Insurance Co Pty Ltd - [2005] NSWSC 1066

No judgment structure available for this case.

Reported Decision:
65 NSWLR 300
194 FLR 419
(2005) 13 ANZ Insurance Cases 61-664

New South Wales

Supreme Court

CITATION:
Waterman v Gerling Australia Insurance Company P/L & Anor [2005] NSWSC 1066

HEARING DATE(S): 15 September 2005

JUDGMENT DATE :

21 October 2005

JUDGMENT OF:
Brereton J

CATCHWORDS:
INSURANCE - Marine and Aircraft Insurance - non-payment of premium instalments - whether clause providing for cover to cease on non-payment on due date confers election on insurer or has automatic effect - whether automatic cessation of cover is "cancellation" within Insurance Contracts Act, s 59 - distinction between provision for cancellation and provision limiting liability of insurer - whether notice under Insurance Contracts Act, s 59 required. - CONTRACT - Waiver - election between inconsistent rights - waiver of one default does not waive subsequent default. - ESTOPPEL - Estoppel by convention - whether parole evidence of post-contractual conduct admissible to set up conventional estoppel - extent of requirement for "clear and unambiguous" convention where inconsistent with formal contract - whether detriment is a necessary element of conventional estoppel.

LEGISLATION CITED:
Insurance Contracts Act 1984 (Cth), ss 11, 39, 52, 53, 58, 59, 60, 62, 63
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB

CASES CITED:
Aetna Life of Australia & New Zealand Ltd v ANZ Banking Group Ltd [1984] 2 NZLR 718; (1985) 3 ANZ Ins Cas 60-612
Ajayi v R T Briscoe (Nigeria) Ltd [1964] 3 All ER 556
Amalgamated Investment and Property Co Limited (in liq) v Texas Commerce International Bank Limited [1982] QB 84
Australian & New Zealand Banking Group Limited v Aetna Life Of Australia & New Zealand Limited (1983) 2 ANZ Ins Cas 60-518
Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267
Australian Crime Commission v Gray [2003] NSWCA 318
Bankstown Football Club Ltd v CIC Insurance Limited (No 3) (NSWSC, Cole J, 16 December 1993, unreported, BC9302335)
Boynton v Monarch Life Insurance Company of New Zealand Ltd [1973] 1 NZLR 606
Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Con-Stan Industries Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Crabb v Arun District Council [1976] Ch 179
Craine v Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305
Dabbs v Seaman (1925) 36 CLR 538
Ellery v Beck and The Royal Insurance Fire and General (NZ) Limited (1990) 6 ANZ Ins Cas 610045
Eslea Holdings Limited v Butts (1986) 6 NSWLR 175
Farmers Mutual Insurance Limited v Slavich (1995) 9 ANZ Ins Cas 61-295.
Flinn v Flinn [1999] 3 VR 712
Foran v Wight (1989) 168 CLR 385
G. A. Lovell & Sons Pty Ltd v FML Assurance Ltd (1982) 2 ANZ Ins Cas 60-464
Galaxidis v Galaxidis [2004] NSWCA 111
Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641
Hughes v Metropolitan Railway Co (1877) 2 App Cas 439
IW v City of Perth (1997) 191 CLR 1
Johnson Matthey Limited v A C Rochester Overseas Corp (1990) 23 NSWLR 190
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Legione v Hateley (1983) 152 CLR 406
Low v Bouverie [1891] 3 Ch 82
McCormick v National Motor & Accident Insurance Union Limited (1934) 40 Com Cas 76
Menzies v Security & General Insurance Co (NZ) Limited (1990) 6 ANZ Ins Cas 61-029
MK & JA Roche Pty Limited v Metro Edgley Pty Limited [2005] NSWCA 39
New Zealand Shipping Co v Societe Des Ateliers et Chantiers de France [1919] AC 1; [1917] 2 KB 717
Newbon v City Mutual Life Assurance Society Limited (1935) 52 CLR 723
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Newnham v Baker [1989] 1 QdR 393; (1988) 5 ANZ Ins Cas 60-885
R v Bolton; Ex parte Beane (1987) 162 CLR 514
Re Cafdawn Pty Limited and Waltons Stores (Interstate) Limited (Fed CA, Beaumont J, 28 March 1991, unreported)
Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153
SkyWest Aviation Pty Limited v Commonwealth of Australia (1995) 126 FLR 61
Smith v Associated Dominions Assurance Society Pty Ltd (in liq) (1956) 95 CLR 381
Spooner-Kenyon v Yorkshire-General Life Assurance Company Limited (1982) 2 ANZ Ins Cas 60-476
State Rail Authority of NSW v Heath Outdoor Pty Limited (1986) 7 NSWLR 170
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
Thompson v Palmer (1933) 49 CLR 507
Turner v Metropolitan Life Assurance Company of New Zealand Ltd (1988) 5 ANZ Ins Cas 60-861
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387
Western Australian Insurance Company Limited v Dayton (1924) 35 CLR 355
Willcocks v New Zealand Insurance Co [1926] NZLR 805
Wimbush v Rothwell & Tinkler [1933] NZLR 1167
Woodhouse A C Israel Cocoa Limited SA v Nigerian Produce Manufacturing Co Limited [1971] 2 QB 23

PARTIES:
John McIntyre Waterman (plaintiff)
Gerling Australia Insurance Company Pty Limited (first defendant)
Indemnity Insurance Company of North America (second defendant)

FILE NUMBER(S):
SC 50184 of 2004

COUNSEL:
R J Weber SC and I R Pike (plaintiff)
B C Oslington QC and M K Condon (defendants)

SOLICITORS:
Lovett & Green (plaintiff)
Norton White (defendants)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BRERETON J

21 October 2005

50184/04 John McIntyre Waterman -v- Gerling Australia Insurance Company Pty Limited & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff John McIntyre Waterman was the owner of a Piper Cherokee aircraft. He insured it, for the period from 6 June 1997 to 6 June 1998, with the defendants Gerling Australia Insurance Company Pty Limited and Indemnity Insurance Company of North America (“the Insurers”), through their underwriting agency Australian Aviation Insurance Group (Agency) Pty Limited (“AAIG”). The insurance policy provided for the payment of premium by instalments, and that if any instalment was not paid by its due date, cover would be deemed to have ceased at midnight of that due date. Mr Waterman paid each instalment late, though soon after receiving a reminder from AAIG, and before the next instalment became due.

2 AAIG invited Mr Waterman to renew the policy for the year 6 June 1998 to 6 June 1999, and Mr Waterman renewed the policy accordingly. Once again, the policy provided for the payment of premium by instalments, on the same terms. Mr Waterman paid the first instalment, but late. The second and third instalments were overdue and unpaid when, on 2 January 1999, the aircraft was destroyed in an accident. Mr Waterman claims indemnity under the policy, and the Insurers decline, asserting that cover ceased when the premium was not punctually paid.

3 The main issues are:-

· Whether Insurance Contracts Act (Cth), ss 59 and 60 required the Insurers to give notice before cover ceased under the policy for non-payment by the due date of an instalment of premium, so that the policy remained on foot; and

· Whether the Insurers waived, or are estopped from relying on, the “deferred premium endorsement” insofar as it would otherwise have had the effect that cover ceased upon non-payment of an instalment of premium by the due date.

Background

4 On 4 June 1997, AAIG on behalf of the Insurers issued a cover note in respect of the aircraft, naming Mr Waterman (as mortgagor) and Australian Guarantee Corporation Limited (as mortgagee) as the insured parties, and confirming cover with effect from 6 June 1997 until 6 July 1997, “subject to the terms and conditions of the company’s policy”, for a the sum of $40,000 for the aircraft hull, and $1 million for third party liability/passenger legal liability as a combined single limit.

5 On 6 June 1997 AAIG issued a certificate of insurance certifying that they had arranged insurance in respect of the aircraft, in the name of Mr Waterman as mortgagor and the State Bank of NSW as mortgagee, for hull and liabilities ($40,000 for hull and $1 million third party liability/passenger legal liability as a combined single limit), with effect from 6 June 1997 and expiring on 6 June 1998.

6 A letter from AAIG to Mr Waterman dated 18 July 1997 enclosed “the first instalment debit note for insurance” and thanked Mr Waterman for his “prompt payment”. This “prompt payment”, which was due on 6 July 1997, had been received about 10 days late, on 16 July 1997. There is no evidence of any prior communication about the schedule for payment of instalments, although that there was some such communication is to be inferred from the fact that payment was made on 16 July 1997, and from the fact that the letter set out “your revised instalments”, as follows:-

7 Any such communication could only have been shortly before 16 July 1997, as payment on that date could be described by AAIG as “prompt”.

8 AAIG then formally issued an aircraft insurance policy dated 13 August 1997, number VA972204, in respect of the aircraft for the period 6 June 1997 until 6 June 1998 (for $40,000 for hull and $1 million third party liability/passenger legal liability as a combined single limit). The insured was named as Mr Waterman. The policy was forwarded to Mr Waterman by letter dated 1 August 1997, but presumably dispatched after the policy was signed on 13 August.

9 The insuring clause in the policy was in the following terms:-

Gerling Australia Insurance Company Pty. Limited and Insurance Company of North America

10 General condition B8 provided as follows:-

The Policy may be cancelled by either the Company or the Insured giving 10 days notice in writing of such cancellation. If cancelled by the Company, it will return a pro rata portion of the premium in respect of the unexpired period of the Policy. If cancelled by the Insured a return of premium shall be at the discretion of the Company. There is to be no return of premium in respect of any Aircraft on which a loss is paid or payable under this Policy.

11 The policy contained a “deferred premiums endorsement”, in the following terms:-

DEFERRED PREMIUMS

It is hereby understood and agreed that the premiums shall be paid in the following instalments:-

Nevertheless it is further understood and agreed that:-

Notwithstanding any provision as to notice of cancellation contained in this Policy, it is a condition that in the event of any instalment not being paid by its due date the cover afforded by this Policy shall be deemed to have ceased at midnight of such due date.

In the event of a claim hereunder, which exceeds the instalments of premium paid on this Policy the instalments of premium then outstanding shall become payable forthwith.

Subject to terms and conditions of the Policy.

12 A further endorsement, which amended the uses approved under the policy, was issued on 19 August 1997, together with a further schedule which varied the amounts of the premiums. This varied the amount of the second premium, which was due on 6 September 1997, to $711.94. On 18 August 1997, AAIG issued an amended invoice addressed to Mr Waterman for that amount; presumably it was dispatched after the endorsement was dated 19 August. Mr Waterman did not pay on receipt of that amended invoice, and on 10 October 1997 AAIG sent by facsimile to Mr Waterman a letter which attached a copy of the amended invoice, observed that it was due and payable on 6 September 1997, and concluded: “To date we do not appear to have received the moneys and request payment within seven days”. A copy of the letter bears an annotation, evidently made in AAIG’s office: “He rang 10/10/97 and will send in mail (mail only goes Tuesdays and Fridays)”. The instalment was paid on 29 October 1997.

13 AAIG issued an invoice for the third instalment, which was due on 6 December 1997, on 19 November 1997. It was not paid on time, and on 19 January 1998, AAIG sent a facsimile letter to Mr Waterman which attached a copy of the invoice, noted that it was due and payable on 6 December 1997, and added: “I know from previously that mail is a problem with you but can now offer you credit card facilities. Just sign and fill in the bottom portion of the invoice attached and fax back to this office”. Mr Waterman completed the “mail order authority”, authorising a debit to his Visa Card account, on 19 January 1998, and the payment was processed by AAIG on 20 January 1998.

14 On 13 May 1998, AAIG issued a renewal notice to Mr Waterman, inviting renewal of the policy “on the basis of the expiring terms and conditions”. On 19 June 1998, AAIG issued a certificate of insurance certifying that they had arranged insurance in respect of the aircraft with effect from 6 June 1998 to 6 June 1999, the hull for $40,000 and third party liability/passenger legal liability for a combined single limit $1 million. A new policy schedule was issued, which showed the period of insurance as 6 June 1998 until 6 June 1999, and included a deferred premium endorsement in the same terms as the previous year’s policy, save that the dates and amounts for payment were as follows:-

Due 6 June 1998 $865.20
Due 6 September 1998 $648.90
Due 6 December 1998 $648.90

15 There is no evidence of any prior communication about the schedule of instalment payments. On 21 July 1998, Mr Waterman paid the first instalment of the premium, being $865.20, which was due on 6 June 1998.

16 On 11 August 1998, AAIG issued an invoice for the second instalment of premium, being $648.90, due 6 September 1998. That invoice was not paid. Mr Waterman does not recall receiving the invoice dated 11 August 1998, but does not deny it. Given his undisputed receipt of the earlier invoices over the preceding year, and his apparent disregard of them until a reminder was received, the more likely explanation is that he did receive but did not give prompt attention to it, and I so find.

17 On 11 November 1998, AAIG sent Mr Waterman a letter, as follows:-

On checking our records we note that to date we have not received your payment for $648.98 Final 30% Premium which fell due on 6 September 1998. As this is obviously an oversight a copy of the invoice/mail order authority is attached. Your cheque or authority would be appreciated at your earliest.

18 The reference to “Final 30% Premium” was erroneous: it was the second 30% premium which had fallen due on 6 September 1998; the final 30% premium fell due on 6 December 1998.

19 Evidence of conversations said by Mr Waterman to have taken place between him and AAIG following receipt of the letter of 11 November 1998 was, after some debate, not tendered.

20 There is no evidence that AAIG issued any invoice for the third instalment, due on 6 December 1998.

21 The aircraft was destroyed in an accident on 2 January 1999, and Mr Waterman notified a claim on the policy to AAIG. On 6 January 1999, AAIG wrote to Mr Waterman, noting that he had failed to maintain the policy by payment of the premiums due on 6 September and 6 December 1998, and that while underwriters had appointed a loss assessor to investigate the circumstances of the accident, they reserved their rights.

22 Prior to the letter of 6 January 1999, neither the Insurers nor AAIG gave notice to Mr Waterman that his aircraft was uninsured or that cover under the policy had ceased or that the policy would be or had been cancelled. As at 2 January 1999, Mr Waterman believed that the aircraft was insured in accordance with the policy as renewed, and on the basis of that belief had not made any arrangements with any other Insurers. He presumed that AAIG would contact him regarding any further amount outstanding - as they had on 19 January 1998 in relation to payment of the final instalment for the previous year.

Did the Act preserve cover notwithstanding the endorsement?

23 The first main issue is whether, as Mr Weber SC, who with Mr Pike appeared for Mr Waterman, submits, cover under the policy remained in effect as at 2 January 1999, notwithstanding the deferred premiums endorsement, by operation of Insurance Contracts Act, Pt VII, and in particular ss 59 and 60.

24 Section 59, entitled “Cancellation Procedure”, relevantly provides as follows:-

(1) An insurer who wishes to exercise a right to cancel a contract of insurance shall give notice in writing of the proposed cancellation to the insured.

(2) The notice has effect to cancel the contract at whichever is the earlier of the following times:

(a) The time when another contract of insurance between the insured and the insurer or some other insurer, being a contract that is intended by the insured to replace the first mentioned contract, is entered into;

(i) 4.00 pm on the applicable business day;

(ii) If a time is specified for the purpose in the contract – that time;

…

25 Generally speaking, the “applicable business day” is the third day after the day on which the notice is given: s 59(2A)(a)(ii). Section 60, entitled “Cancellation of Contracts of General Insurance”, relevantly provides as follows:-

(1) Where, in relation to a contract of general insurance;

(a) a person who is or was at any time the insured failed to comply with the duty of utmost good faith;

(b) the person who was the insured at the time when the contract was entered into failed to comply with the duty of disclosure;

(c) the person who was the insured at the time when the contract was entered into made a misrepresentation to the insurer during the negotiations for the contract but before it was entered into;

(d) a person who is or was at any time the insured failed to comply with a provision of the contract, including a provision with respect to payment of the premium; or

(e) the insured has made a fraudulent claim under the contract or under some other contract of insurance (whether with the insurer concerned or with some other insurer) that provides insurance cover during any part of the period during which the first mentioned contract provides insurance cover;

the insurer may cancel the contract.

26 Section 62, entitled “Cancellation of Instalment Contracts of General Insurance”, provides that an “instalment contract of general insurance” (which, as will become apparent, this policy was not) may include provisions inconsistent with s 59 with respect to the cancellation of the contract for non-payment of an instalment of the premium, but an insurer may not rely on such provision unless at least one instalment of the premium has remained unpaid, at the time when the contract is sought to be cancelled, for a period of at least one month, and before the contract was entered, the insurer clearly informed the insured in writing of the effect of the provision.

27 Section 63, entitled “Cancellations Void”, provides that except as provided by the Act, an insurer may not cancel a contract of general insurance and any purported cancellation in contravention of the section is of no effect.

28 Mr Oslington QC, who with Mr Condon appeared for the Insurers, submits that cessation of cover pursuant to the deferred premiums endorsement is not a “cancellation” of the insurance contract within Part VII of the Act at all.

29 This issue has two elements: first, what is the effect of the deferred premiums endorsement, which involves construction of that provision of the policy; and secondly, whether the deferred premiums endorsement so construed is a cancellation within Part VII, which involves construction of the relevant provisions of the Act.

Construction of the endorsement

30 The “deferred premiums endorsement” has been set out in full above. For present purposes, the critical provision is:-

Notwithstanding any provision as to notice of cancellation contained in this Policy, it is a condition that in the event of any instalment not being paid by its due date the cover afforded by this Policy shall be deemed to have ceased at midnight of such due date.

31 Uninstructed by authority, the words “it is a condition”, coupled with “shall be deemed to have ceased”, would incline one to the view that the effect of the provision is not to confer on the Insurers an election to cancel the policy if an instalment of premium was not paid by the due date, but rather automatically and of its own force pursuant to the original agreement of the parties (rather than as a result of any act of cancellation by the Insurers) to effect a cessation of cover upon that event. But Mr Weber submits that there is a general principle of construction, applicable particularly to insurance contracts, which requires that the provision be construed not as bringing about automatic cessation of cover, but rather as conferring on the Insurers an election to cancel.

32 In support of the principle of construction for which he contends, Mr Weber refers first to Newbon v City Mutual Life Assurance Society Limited (1935) 52 CLR 723. The policy there under consideration was to the effect that if the premiums or any of them were not paid on the due dates or within one calendar month thereafter, “the within policy shall be void and the benefits assured shall be forfeited … “, provided that if the policy was kept in force for two years from the commencement of the risk, non-payment of any subsequent premium would not void it so long as the net surrender value was sufficient for the payment of that subsequent premium. Rich, Dixon and Evatt JJ held that the clause should not be interpreted as automatically avoiding the policy, and that its true interpretation was that the policy became voidable at the election of the insurer, and not void, when a premium remained unpaid [at 732-733]:-

ipso facto

pro tanto

New Zealand Shipping Co v Societe des Ateliers et Chantiers de France

Waiver Distributed

McCormick v National Motor & Accident Insurance Union Limited

33 In a separate judgment, Starke J acknowledged that there was some authority for the position that non-payment of the premium terminated the policy by force of its terms, although His Honour thought that the better view was that the policy was capable of being affirmed or rejected at the option of the insurer [at 737]:-

There is some authority for the position that non-payment of the premium terminated the policy by force of its terms ( McCormick v National Motor & Accident Insurance Union Limited (1934) 40 Com Cas, at p87. But the better view appears to be that the policy is capable of being affirmed or rejected at the option of the society, see Bunyon on Life Assurance, 5th Ed. (1914), p 99.

34 In the present case, which does not involve a life policy, and in which there is no surrender value to which recourse might be had to satisfy future unpaid premiums, it is not apparent that cessation of cover in the event of non-payment of an instalment of premium would not always be for the benefit of the Insurers: it is difficult to see how it could be other than in the interests of insurers to be “off-risk” while premium or part of it remained unpaid. And there are not in the same clause references to such other matters as omissions from the proposal, in respect of which it might be thought unlikely that cover was to cease independently of any election by the Insurers. Thus the contextual matters which influenced the High Court in Newbon to adopt the construction which their Honours did are not to be found in the present case.

35 The authorities to which their Honours referred for the principles of interpretation on which they relied were by no means unequivocal. McCormick v National Motor & Accident Insurance Union Limited (1934) 40 Com Cas 76 was a decision of the Court of Appeal in respect of a motor vehicle third-party policy which provided: “If any material fact relating to this contract shall have been concealed, withheld or misrepresented by the insured, this policy shall be void” [at 81]. The trial judge, Swift J, had held that the insurer, by not immediately ceasing to defend the case for the insured after discovering a material misrepresentation by the insured, was estopped from later disputing the validity of the policy. The insurer’s appeal was unanimously upheld, Scrutton, Greer and Slessor LJJ all holding that there was no estoppel because the insurer was (on any view of the provision) entitled to a reasonable time to consider “repudiating” the policy; but there were differences between the Lords Justices as to the effect of the provision: while Scrutton LJ held [at 81] that the effect of the provision was to create a right of rescission, so that the policy was voidable and not void; Greer LJ thought [at 87] that though it did not matter, the policy was made void by its own terms; and Slessor LJ, while treating the policy as voidable, thought it “very arguable” that that was a wrong view of the effect of the contract (and, thus, that the contract was automatically void). The case does not support the approach adopted in Newbon, as the High Court acknowledged [Newbon, at 733, 737]. Moreover, the context was not that of a life policy with a surrender value, so that the possibility, referred to in Newbon, that result of the policy being void would not always be in the ultimate interests of the insurer, was not so significant.

36 In the case primarily relied upon in Newbon - New Zealand Shipping Co v Societe des Ateliers et Chantiers de France - the House of Lords held that a stipulation in a contract that it be void in a certain event was to be construed according to its natural meaning, subject to the principle that a party should not be permitted to take advantage of its own default – so that if the result of construing “void” as “void” would be to enable a party to avail himself of his own wrong, then “void” would be read as “voidable”. But as the relevant event – war - was not one brought about by default of either party, the result was that “void” meant “void”, not “voidable”. Lord Atkinson said [at 9] that it was undoubtedly competent for parties to stipulate that a contract should be void upon the happening of an event over which neither had any control (for example, if rain were to fall on the thirtieth day after the contract was made), in which event the contract would be put to an end by that event whether or not the parties so desired, although they could immediately if they wished enter into a new contract; but that if the stipulation was that the contract be void upon an event which one or other of them could bring about, “then the party, who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case indirectly in a roundabout way, but in either way putting an end to the contract”. Thus the rationale for construing “void” as “voidable” in an appropriate case was to prevent a party in default from taking advantage of its own wrong. As has been pointed out by Lord Diplock [in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180, 188] and Samuels AP [in Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568, 576-578], the speeches are “not entirely consistent with one another” [see Lord Finlay LC (at 6-8), Lord Shaw (at 12-13), and Lord Wrenbury (at 14-15)], but a significant element in the reasoning of each of their Lordships’ was the idea that a clause of the kind under consideration should not permit a defaulting party to terminate the contract at its option [Cheall, 189; Rudi’s Enterprises, 578B].

37 Bunyon, in the treatise relied on by Starke J, simply asserted [at 99], without reference to authority, that provisos rendering policies void upon the breach of any specified conditions were generally construed as rendering them not void but voidable at the election of the insurer. Once again, this was written in the context of life policies.

38 As the High Court indicated in the passage already cited from the joint judgment in Newbon, such a construction may well be warranted where the provision in question confers upon a party a right the exercise of which may not always be for its ultimate benefit. In life insurance cases, where there is a surrender value from which future premiums can be satisfied, it will not always be in the interests of the insurer to terminate upon default in payment of an instalment of premium. This consideration appears to have influenced the High Court, in Newbon, to construe “void” as “voidable”. But where the right created would always benefit the blameless party, there is no need or reason to adopt that approach.

39 Newbon was followed in Smith v Associated Dominions Assurance Society Pty Ltd (in liq) (1956) 95 CLR 381 (Taylor J), in which it was applied to a condition in a life policy that if any premium were not paid within 30 days of the due date “this policy shall be null and void”. But although both parties accepted that the clause was indistinguishable in substance from that in Newbon, which was therefore determinative of the point, His Honour, while unable to distinguish Newbon and thus applying it so as to construe the provision as not automatically avoiding the policy, nonetheless observed [at 385], with reference to McCormick, that there were cogent arguments for a contrary construction.

40 Mr Weber then referred to Boyntonv Monarch Life Insurance Company of New Zealand Ltd [1973] 1 NZLR 606, in which McMullin J considered a policy which provided that in the event of a premium not being paid at the end of one calendar month after its due date, then (except in certain circumstances), “the policy will be null and void”. His Honour referred to the judgment of Rich, Dixon and Evatt JJ in Newbon, and held that the proper construction of the phrase “will be null and void” was that the policy was voidable at the election of the insurer [at 613]:-

I am of the view that, while condition 4 of the policy refers to the fact that the policy will be null and void and all premiums paid forfeited to the company if, inter alia, any premium is unpaid at the end of one calendar month after its due date, the proper construction to place upon this condition is that the policy is voidable only at the election of the company in the event of any premium or instalment of that premium being unpaid at the end of one calendar month of its due date.

41 Mr Weber next referred to the judgment of Cook J in the High Court of New Zealand in Spooner-Kenyon v Yorkshire-General Life Assurance Company Limited (1982) 2 ANZ Ins Cas ¶60-476. In that case – which, like Newbon, Smith and Boynton, also involved a life policy - the contract of insurance provided that if any premium was not duly paid, “the policy will lapse unless prevented by doing so by condition 2”. Condition 2 provided that if any premium was not duly paid the assurance would remain in force for so long as the surrender value should permit. His Honour referred to Boynton and to Newbon, and concluded that there was no material difference between the expressions “will lapse” and “will be null and void”, so in either case the contract would be at an end if the insurer so elected [at 77,700]:-

42 Mr Weber last referred to another decision of the High Court of New Zealand (Casey J), in Australian & New Zealand Banking Group Limited v Aetna Life Of Australia & New Zealand Limited (1983) 2 ANZ Ins Cas ¶60-518. In that case, a life policy provided that 30 days grace was allowed for payment of a premium, and “if a premium is not paid within this period, this policy will be forfeited”. In practice, when a premium was one month overdue, the insurance company’s computer automatically sent out a notice to that effect, and if it remained unpaid a further notice that benefits were terminated was sent, offering to reinstate benefits if the amount owing was paid within fourteen days. His Honour accepted the bank’s submission that the effect of the condition was to render the policy voidable only [at 77,957]:-

Newbon v City Mutual Life Assurance Society Limited

Boynton

v Monarch Life Insurance Company

43 There was an unsuccessful appeal to the New Zealand Court of Appeal [Aetna Life of Australia & New Zealand Ltd v ANZ Banking Group Ltd [1984] 2 NZLR 718; (1985) 3 ANZ Ins Cas ¶60-612]. Somers J, who delivered the judgment of the Court, said that whether the liability of a party (the insurer) to perform (by payment) was dependent upon the happening of some future event (punctual payment of premium) was a matter of construction of the contract as whole. His Honour referred to Newbon, Smith, Boynton, Spooner-Kenyon, and G. A. Lovell & Sons Pty Ltd v FML Assurance Ltd (1982) 2 ANZ Ins Cas ¶60-464, and concluded that even if there had been doubts as to the construction of the policy – which his Honour did not entertain – it would be wrong to depart from a meaning long attributed to such forfeiture provisions and (emphasis added) “no doubt well understood by those who carry on this class of insurance, namely that even such terms as null and void call for an election by the insurer”.

44 In Turner v Metropolitan Life Assurance Company of New Zealand Ltd (1988) 5 ANZ Ins Cas ¶60-861, Wallace J in the High Court of New Zealand followed Aetna in holding that whether an insurer’s liability to pay the sum insured was conditional on the payment of premiums was a matter of construction of the whole contract, and that a provision to the effect that the policy shall be cancelled if payment of premium is not made within thirty days of the due date (with a proviso for application of the surrender value towards premiums due) was indistinguishable from that in Aetna.

45 Thus it may be observed that these cases, in which the principle of construction for which Mr Weber contends has been applied, have all been cases concerning life policies, in which context it would not always be for the ultimate benefit of the insurer that the policy be regarded as automatically avoided, because of the availability of surrender value to satisfy future unpaid premiums.

46 What emerges from these cases is that - while it is ultimately a question of construction, so that sufficiently clear language could have the effect that the policy is made void automatically for non-payment of premium, or that payment of premium is made a condition precedent to liability - provisions in life insurance policies to the effect that they will be void or lapse if the insured fails to pay an instalment of premium are generally construed as rendering the policy not void but voidable, and provisions which make the insurer’s liability depend on punctual payment of the premiums are generally construed not to create a condition precedent to liability.

47 This approach to construction has also been applied in contexts other than insurance contracts. Thus, in Suttor v Gundowda Pty Limited (1950) 81 CLR 418, the High Court said [at 440-442] that where a contractual provision is to the effect that a contract is void upon the happening of an event that may be caused by the default of one party, then the provision is to be construed as making the contract voidable at the option of the party who is not in default. In a joint judgment, Latham CJ, Williams and Fullagar J held that a provision in a contract for sale of a pastoral property that, in the event of the treasurer’s consent not being obtained within two months of the date of the contract or such further time as might be mutually agreed upon by the parties, the contract should “be deemed to be cancelled”, the non-receipt within time of the treasurer’s consent did not effect an automatic cancellation of the contract, because the relevant provision was to be construed as making the contract not void but voidable. After referring to what was said by Lord Atkinson in New Zealand Shipping, as summarised above, their Honours identified two different sets of factual circumstances which might arise:

· Where the event was one which could not occur without default on the part of one party, in which case the provision was to be construed as making the contract not void but voidable at the election of the party not in default, who could choose whether or not to avoid it;

· Where the event could be brought about either by default of a party, or independently of any default by external circumstances, in which case New Zealand Shipping required the same construction to be given to the provision, although who could avoid depended upon the circumstances – if one party’s default had brought about the happening of the event, only the other was entitled to avoid; whereas if the event had occurred without default by either party, then either party was entitled to avoid, but neither need do so and the contract remained on foot unless avoided. This was so, because if “void” meant “voidable” in the first case, its meaning could not change to suit the facts but must, consistently, mean “voidable” in the second case also.

48 Suttor – and likewise Newbon – does not establish a principle of law to be applied irrespective of the apparent intention of the parties, but rather a rule of construction which, like most such rules, must yield to sufficiently clear expressions of contrary intent [MK & JA Roche Pty Limited v Metro Edgley Pty Limited [2005] NSWCA 39, [42] – [47]]. “Effect must be conceded to the parties’ intention” [Rudi’s Enterprises, 579 (Samuels JA; Priestley and McHugh JJ concurring)]. The question is ultimately one of construction, and depends on the particular words of the particular contract [Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153, 161, 165]. Ultimately, whether or not a clause has the effect of providing for automatic termination, or confers on a party a right to terminate, must be considered clause by clause, and not by reference to any general principle of construction; and where the contractual language and context so requires, a contractual provision can be construed as providing for “automatic termination”, even though the event could possibly be caused by the default of one party: that party can be prevented from taking advantage of its own default by direct application of the principle that a party cannot be permitted to take advantage of its own wrong [Rudi’s Enterprises, 576-580; MK & JA Roche v Metro Edgley, [44] – [46]].

49 Importantly, Suttor did not concern nor address the situation, adverted to in Newbon, when the provision in question confers upon the innocent party a right which will always be for its benefit. In my opinion, the rule of construction referred to in Suttor and Newbon has a dual rationale: to ensure that a party in default cannot take advantage of its own wrong, and to permit a party not in default, who may or may not ultimately benefit from termination, to make the choice whether or not to take advantage of the opportunity which the stipulated event presents.

50 That the weight and applicability of the rule of construction authorised by Suttor and Newbon may vary according to the circumstances, is illustrated by the view, expressed by Hodgson JA in the Court of Appeal, that it applies most powerfully where the invalidating event can occur only though a default of one or other party; so that the lesser that likelihood (as distinct from a cause outside the control of the parties), the less powerfully it applies [MK & JA Roche v Metro Edgley, [47]].

51 Similarly, in my opinion, its weight and applicability is also significantly affected by whether it can be said that, upon happening of the relevant event, the exercise of a right of termination may not always be for the ultimate benefit of the innocent party [cf Newbon, 732-733]. Where that cannot be said – in other words, where upon the happening of the relevant event, termination will always be for the ultimate benefit of the innocent party – the rationale of the rule in Suttor and Newbon – which is to ensure that a party in default cannot take advantage of its own wrong, and to permit a party not in default who may or may not benefit from termination to make the choice – is not present, and there is no reason to apply it.

52 I have already referred to the absence in this case of the contextual matters which influenced the High Court in Newbon to adopt the view of the clause in that case which commended itself to their Honours, and which permit Newbon to be distinguished from the present case:

· The present case does not involve a life policy. There is no surrender value to which recourse might be had to satisfy unpaid premiums. Thus, in the event of non-payment of an instalment of premium, cessation of cover – at least so long as the instalment remains outstanding - would always be for the benefit of the Insurers: it is difficult to see how it could ever be other than for the benefit of an insurer to be “off risk” while premium remains unpaid. The rationale for the rule in Suttor and Newbon is not present and does not warrant its application here.

· Of less moment, there are no references in the same clause to other matters upon which it might be unlikely that cover was to cease independently of any election by the Insurers.

53 Other significant considerations appearing from the clause in this case and affecting its construction are:-

· It is stated to be a condition of the policy. Seen in conjunction with the insuring clause and the reference to payment of the premium being the consideration, this favours the view that payment of premium instalments by the due date was intended to be a condition precedent to the availability of cover after that date.

· The words in the deferred premium endorsement “Notwithstanding any provision as to notice of cancellation contained in this policy” refer back to general condition B8, which provides that the policy “may be cancelled” by either the Insurers or Mr Waterman giving 10 days notice in writing of such cancellation, and makes provision for return of a pro rata portion of the premium in respect of the unexpired period of the policy. Clause B8 uses the language of cancellation; this is to be distinguished from the words of the deferred premium endorsement which, when “Notwithstanding any provision as to notice of cancellation …” is linked with “it is a condition” and “deemed to have ceased”, suggest that a deemed cessation of cover under the endorsement is an entirely different concept from a cancellation of the policy. They suggest that this part of the endorsement is not a “provision as to notice of cancellation”, but a “condition of this policy”.

· The provision that cover is deemed to have ceased “at midnight of such due date” means that the cessation takes place at the end of the day upon which the instalment payment is due. That allows no time for any election to be made after the condition is satisfied. The absence of any period of grace and the immediate effect of the cessation strongly favours the view that automatic cessation was intended. These words cannot reasonably accommodate a construction which affords the Insurers an election whether or not to terminate, because there is no time for any such election to be made.

· The endorsement provides that in the relevant event, cover “shall be deemed to have ceased”. Thus the cessation of cover is not the result of the election of any party, but something which is deemed to occur. The language of deeming is supportive of an automatic cessation upon the relevant event occurring, rather than the Insurers having an election to cease cover. A provision which deems something to happen upon a certain event does not sit comfortably with giving a party an election as to whether or not that result ensues. Although the force of this consideration is somewhat diminished by the circumstance that, in Suttor, the High Court was not deterred from construing the relevant clause as conferring an election to cancel, by terminology to the effect that upon the stipulated event the contract was deemed to be cancelled, nonetheless, here it remains one amongst several indicators which favour the construction that automatic cessation was intended.

· The endorsement speaks of cessation of cover, not termination of the policy. This envisages not that the policy as a whole is brought to an end, but that cover ceases when an instalment is not paid (at least until it is belatedly paid). It is a provision which makes punctual payment of the premiums a condition precedent to the Insurers’ liability, rather than one providing for automatic avoidance of the policy on non-payment of premium. The distinction between provisions which limit liability (even totally) in the event of non-payment of premium, and provisions which authorise termination for non-payment, is well established [see Aetna v ANZ; Turner v Metropolitan Life Assurance Company; Insurance Contracts Act, ss 39, 62; Sutton, Insurance Law in Australia, 3rd ed (1999), [7.42]].

54 For those reasons, the “deferred premiums endorsement” does not have the effect of conferring upon the Insurers an election to cancel the policy in the event that a premium instalment is not paid punctually. Rather, it works an automatic cessation of cover upon that event, at least unless and until the instalment is paid.

Construction of the Act

55 The next question is whether Part VII, properly construed, captures such an automatic cessation of cover.

56 The operative provision is s 59, which speaks of an insurer “who wishes to exercise a right to cancel a contract of insurance”, and requires notice in writing to be given and provides that that notice has effect to cancel the contract. Section 60 confers on an insurer a right to cancel a contract of general insurance in certain events. Section 63 provides that an insurer may not cancel a contract of general insurance except as provided by the Act.

57 As Mr Oslington submits, the Act recognises a distinction between a contractual provision which limits the liability of the insurer by reference to non-payment of an instalment of premium, and one which authorises cancellation for non-payment of an instalment. While Mr Weber correctly points out that the contract of insurance in this case is not an “instalment contract of general insurance” within the meaning of the Act – because, by s 11(8), that term is defined to mean a contract of general insurance the premium for which is payable by seven or more instalments in a year, and this policy provides for only three instalments – it is nonetheless notable that the Act contains two provisions relevant to non-payment of an instalment in such a contract: section 39, which deals with provisions in such contracts which have “the effect of limiting the liability of the insurer by reference to non-payment of an instalment of the premium”, and provides that the insurer may not refuse to pay a claim in whole or in part by reason of that provision unless an instalment has remained unpaid for fourteen days and before the contract was entered into clear written notice of the effect of the provision was given to the insured; and section 62, which deals with provisions authorising cancellation “for non-payment of an instalment of the premium”, and provides that notwithstanding section 59, an instalment contract can include such provisions but that they cannot be relied on unless an instalment has remained unpaid for a month and before the contract was entered into clear written information as to the effect of the provision was given to the insured.

58 Thus, in respect of instalment contracts as defined, the Act recognises two different concepts: one, being a provision which has the effect of limiting the liability of the insurer by reference to non-payment of an instalment (which is addressed in s 39); and the other, a provision with respect to cancellation of the contract for non-payment of an instalment (which is addressed in s 62). That the two sections are complementary in this way is recognised in the Explanatory Memorandum [paras 125, 210]. And Professor Sutton, in Insurance Law in Australia, 3rd ed (1999) also recognises the distinction, pointing out [at [7.42]] that s 39 of the Act is aimed at a term of the contract which permits the insurer to refuse to pay or to reduce liability on a claim where an instalment of the premium has not been paid, while s 62 covers the situation where the insurer is permitted by the contract to cancel it without notice for the same reason: “Hence s 39 is concerned with payment of a claim, while s 62 relates to the cancellation of the contract itself”.

59 While these provisions are not directly applicable to the policy in suit, because it is not an instalment contract as defined, the result is that any provision authorising cancellation of a policy for failure to comply with a provision of the contract with respect to payment of the premium would be caught by s 59 (in the absence of s 62 having operation) [see s 60(1)(d)]. But provisions which have the effect of limiting liability by reference to non-payment of the premium or part thereof are caught by no provision of the Act (except in the case of instalment contracts as defined). The “deferred premiums endorsement” is properly characterised as a provision limiting liability by reference to non-payment of an instalment (which, if it were an instalment contract as defined, would be covered by s 39 and, not being within that definition, is completely uncovered), rather than as a provision with respect to cancellation of the policy for non-payment (which, if it were an instalment contract as defined, would be covered by s 62, and otherwise by s 59).

60 In insurance law generally, cancellation of a policy by the insurer is an election by it to rescind the contract of insurance [Sutton, Insurance Law in Australia, 3rd Ed (1999) [7.36]]. Cancellation is to be distinguished from termination of a policy by mutual agreement [Willcocks v New Zealand Insurance Co Limited [1926] NZLR 805; Wimbush v Rothwell & Tinkler [1933] NZLR 1167; although these cases deal with mutual termination by agreement between insurer and insured after the inception of the policy, as distinct from automatic termination in accordance with provisions of the policy upon the happening of a particular event, and since the commencement of the Act, a policy cannot even be cancelled by consent except perhaps where the consent is sought by the insured: Bankstown Football Club Ltd v CIC Insurance Limited (No 3) (NSWSC, Cole J, 16 December 1993; BC9302335].

61 For the reasons already explained, cessation of cover under the “deferred premiums endorsement” does not involve an insurer exercising a right to cancel the contract, but is an automatic consequence of the occurrence of a stipulated event. While Professor Sutton (at [7.36]) cites Menzies v Security & General Insurance Co(NZ) Limited (1990) 6 ANZ Ins Cas ¶61-029 as supporting the proposition: “There can be no unilateral cancellation by automatically lapsing for non-payment of the premium” - that authority does not support, at all, the proposition for which Professor Sutton cites it.

62 But Mr Weber submits that the clear intention of the legislature was to prevent automatic termination of insurance cover without notice. In support of that submission he refers, first, to the Law Reform Commission Report Insurance Contracts, which was the genesis of the Act [ALRC 20]. In Chapter Nine, entitled “Cancellation and Renewal of Cover”, the Commission evidently intended to address automatic cancellation, as well as cancellation upon notice [at paras 246-247] (emphasis added):

Cancellation by the insurer may result in the insured being exposed to uninsured loss. C lauses which provide for automatic cancellation or for cancellation without notice after the expiry of a limited period are particularly dangerous in this regard. … Some of these factors were mentioned in the discussion paper. It was suggested that automatic cancellation and cancellation without notice should be forbidden. … In its submission, the ICA recognised the general undesirability of clauses providing for automatic cancellation or cancellation upon notice. … Despite the ICA’s misgivings, the general approach adopted in the discussion paper is maintained. The risk of loss being suffered by an innocent insured cannot be accepted as a normal incident of the exercise of the insurer’s right of cancellation. Clauses providing for automatic cancellation or for cancellation without notice should be rendered ineffective. Notice of cancellation should be required in all cases.

63 The relevant provisions of the Act closely correspond with those of the draft bill which accompanied the ALRC report, and it may therefore be inferred that the reasoning in the report informed Parliament in its enactment. Moreover, the Explanatory Memorandum says that the rationale for the clause which became s 59 included that terms providing for automatic cancellation after the expiration of a limited period or immediately upon notice to the insured may severely prejudice the insured [Insurance Contracts Bill 1984, Explanatory Memorandum, para 200-201]:-

200. Contractual terms providing for automatic cancellation after the expiration of a limited period or cancellation immediately upon the insurer’s receiving notice may severely prejudice the insured. …

64 This extrinsic material makes a strong case that the ALRC and the Parliament may have intended the Act to prevent “automatic” cancellation. However, the ALRC Report and the Explanatory Memorandum are merely aids to the construction of the words of the words of the statute, to which resort might be had in the event of ambiguity [Acts Interpretation Act 1901 (Cth), s 15AB]. Where the meaning of a provision is clear, neither that provision, nor the purposive approach to construction required by s 15AA, authorises the substitution of a different construction in furtherance of the objects of the legislation [Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423 (McHugh JA); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 109, 111-113 (McHugh J)]. They are not the starting point for the exercise of construction, but aids to which resort might be had in the case of difficulty. Extrinsic material cannot be use to construe a provision in a manner which is not otherwise reasonably open, and even when adopting a purposive approach to remedial legislation a court is not at liberty to adopt a construction which is unreasonable or unnatural [IW v City of Perth (1997) 191 CLR 1, 12 (Brennan CJ and McHugh J); Newcastle City Council v GIO, 113 (McHugh J)]. And of particular relevance here, “If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances” [Newcastle City Council v GIO, 113 (McHugh J)].

65 As has already been pointed out, the plain words of the Act distinguish between provisions for cancellation of the policy, and provisions limiting liability to pay. In this case, the relevant provision is of the latter character. Section 59 does not affect provisions which limit liability to pay by reference to non-payment of premium. Such provisions are not affected by the Act save in the case of instalment contracts as defined, which this is not. To construe s 59 as extending to such provisions would be to construe a provision which covers only one state of affairs, to cover another set of circumstances, when the distinction between the two situations, albeit in the context of “instalment contracts”, is recognised in the Act, by ss 39 and 62.

66 Moreover, insofar as the Act regulates cancellation of policies, its plain words are concerned with cancellation by the insurer; what occurred here was not a cancellation of a contract of insurance by the insurer, consensually or pursuant to any right of the insurer to do so, but an automatic cessation of cover under the policy upon occurrence of a specified event. That is not a “cancellation by the insurer” within s 59.

67 Accordingly, this is an instance in which, if Parliament intended to prevent automatic cessation of cover without notice upon non-payment of premium other than in the case of an instalment contract as defined, within the compass of what is called “automatic cancellation” in the ALRC Report and the Explanatory Memorandum, then the words it has employed for that purpose are simply insufficient to achieve it: cf R v Bolton; Ex parte Beane (1987) 162 CLR 514, 518, where Mason CJ, Wilson and Dawson JJ observed that it was always possible, through oversight or inadvertence, that the clear intention of the Parliament fails to be translated into the text of the law, which, however unfortunate, left the Court to give effect to the will of Parliament as expressed in the law, and not to the Minister’s speech.

68 Accordingly, because the “deferred premiums endorsement” is not a provision for cancellation of the policy, but one limiting liability to pay (by providing that cover ceases), and because it produces an automatic agreed result on the happening of a particular event and does not confer a right to cancel on the insurer such as to authorise cancellation in the sense in which that term is used in insurance law, and because ss 59, 60 and 63 plainly contemplate, and contemplate only, cancellation by an insurer, I would hold that, on the plain language of Part VII, and in particular ss 59, 60 and 63, that Part does not apply to deemed cessation of cover under the “deferred premiums endorsement”.

69 It follows that the Insurance Contracts Act does not have the effect that cover under the policy remained in force as at 2 January 1999, the date of the accident. To the contrary, but subject to the issues about estoppel and waiver to which I shall now come, cover ceased when the second premium instalment was not paid on 6 September 1998, and a fortiori, when the third instalment was not paid on 6 December 1998. As neither premium was ever paid, cover was never revived prior to 2 January 1999. There was no cover when the accident took place on 2 January 1999.

Does waiver or estoppel preclude reliance on the endorsement?

70 Against this eventuality, by a reply filed belatedly, pursuant to leave granted at the hearing and over opposition, Mr Waterman contends that the Insurers waived the application of the deferred premiums endorsement insofar as it would have had the effect that cover under the policy ceased, by electing to keep the policy on foot, notwithstanding non-payment of the premium by the due date (“the waiver issue”), and/or are estopped from asserting that cover under the policy ceased upon non-payment of the second and third instalments of premium, by reason of the parties having proceeded on the common assumption that cover did not cease at midnight on the due date for payment of an instalment if it was not paid (“the estoppel issue”).

Waiver

71 I turn first to the waiver issue. General principles relating to election or waiver apply equally to insurance contracts as to other types of contract. Election, or waiver, is a principle under which one party, by electing to pursue a right which arises from breach or non-compliance by the other, may deprive itself of another right inconsistent with that election [Commonwealth v Verwayen (1990) 170 CLR 390, 406-7 (Mason CJ), 422-8 (Brennan J), 451 (Dawson J), 471-2 (Toohey J)].

72 In the context of insurance, while the question usually arises in relation to a breach that gives rise to a right to terminate the contract, it also applies when non-compliance with a requirement absolves the electing party from liability for a particular loss [Craine v Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305; Newnham v Baker [1989] 1 QdR 393; (1988) 5 ANZ Ins Cas ¶60-885]. Thus the principle is capable of application in the present situation, where non-payment of premium absolves the Insurers from liability to pay the sum insured, notwithstanding that it does not give rise to a right to rescind or cancel, as MacGillivray & Parkington, in Insurance Law (8th ed), pointed out (at para 959):

Notwithstanding the provisions in the policy the insurers may extend the time for payment of the premium or waive any of the conditions precedent to the continuance of the risk, and even after the policy has lapsed the insurer may be held to have revived the insurance upon the same terms by any word or act which leads the insured to believe that the insurers have reassumed the risk.

73 However, a waiver can only occur after a breach or equivalent has given rise to a right of election between inconsistent courses. If AAIG’s letter of 11 November 1998 letter conveyed an implicit suggestion to Mr Waterman that the Insurers were remaining “on risk”, so that it operated as a waiver of the failure to pay the September 1998 instalment punctually, still no demand ever issued for the third instalment, nor any reminder, nor was any payment made. Nor was there any act of the Insurers after default was made in payment of the third instalment, which fell due on 6 December 1998, which could have constituted a waiver of that default. Thus, assuming the letter of 11 November 1998 to operate as a waiver of all prior defaults, and assuming that cover remained in force up to 6 December 1998, there was no waiver following the default of 6 December 1998.

74 Accordingly, in my opinion, the waiver case must fail.

Estoppel

75 Various species of estoppel have not infrequently avoided the results which might otherwise flow from non-payment of premium [see, for example, Roberts v Security Company Ltd [1897] 1 QB 111; Ellery v Beck and The Royal Insurance Fire and General (NZ) Limited (1990) 6 ANZ Ins Cas ¶61-045; Farmers Mutual Insurance Ltd v Slavich (1995) 9 ANZ Ins Cas ¶61-295]. Mr Weber founded his case on that species of common law estoppel known as “conventional estoppel”.

76 In Legione v Hateley (1983) 152 CLR 406, Mason and Deane JJ identified three general classes of estoppel: estoppel of record, estoppel of writing, and estoppel in pais, which they described in the following terms [at 430]:-

Estoppel in pais includes both the common law estoppel which precludes a person from denying an assumption which formed the conventional basis of a relationship between himself and another or which he has adopted against another by the assertion of a right based on it and estoppel by representation which was of later development with origins in Chancery. It is commonly regarded as also including the overlapping equitable doctrines of proprietary estoppel and estoppel by acquiescence or encouragement.

77 In Commonwealth v Verwayen, Deane J said of the doctrine of estoppel by conduct that its central principle was to prevent an unconscientious departure by one party from an assumption adopted by the other as the basis of a relationship to the other’s detriment [at 444]:-

The law will not permit an unconscionable (or more accurately, unconscientious) departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of the litigation.

78 An estoppel by convention depends upon an assumption adopted by the parties as the conventional basis of their relationship. In Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226, Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ emphasised the need for the conduct of relations on the basis of an agreed or assumed state of facts [at 244]:-

Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted upon by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying.

79 The requirement that the assumption be of a state of facts (as distinct from law) has been discarded [Eslea Holdings Limited v Butts (1986) 6 NSWLR 175, 185-9; Waltons Stores(Interstate) Limited v Maher (1988) 164 CLR 387, 415-6, 432, 452, 458; Foran v Wight (1989) 168 CLR 385, 435, 457; Commonwealth v Verwayen, 413, 445, 501; Amalgamated Investment and Property Co Limited v Texas Commerce International Bank Limited (in liq) [1982] QB 84, 122; Meagher, Heydon and Leeming, Equity Doctrines & Remedies, 4th ed, [17-020]; MK & JA Roche v Metro Edgley, [71]].

80 In Amalgamated Property Co v Texas Bank [at 121], Lord Denning MR said that if parties to a contract by their course of dealing put a particular interpretation on its terms, on the faith of which each to the knowledge of the other acted and conducted their mutual affairs, they are bound by that interpretation just as much as if they had recorded it as a variation of the contract. With reference to Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641, His Lordship explained that such parties had by their course of dealing adopted a conventional basis for the governance of their relations and were bound by it – because it would be unjust to allow either to insist on the strict interpretation of the original terms when, having regard to the dealings between the parties, it would be inequitable to do so.

81 Based on a line of authority which holds that parole evidence of pre-contractual negotiations which culminate in a written contract may not be relied upon to set up alleged estoppels by convention [Johnson Matthey Limited v A C Rochester Overseas Corp (1990) 23 NSWLR 190, 195-6; Re Cafdawn Pty Limited and Waltons Stores (Interstate) Limited (FedCA, Beaumont J, 28 March 1991, unreported); SkyWest Aviation Pty Limited v The Commonwealth of Australia (1995) 126 FLR 61 (Miles CJ); State Rail Authority of NSW v Heath Outdoor Pty Limited (1986) 7 NSWLR 170, 177 (Kirby P); Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267, 279 (Bryson J)], Mr Oslington argued that where there was a written contract, parole evidence of post-contractual as well as pre-contractual matters should not be permitted to set up a conventional estoppel.

82 I reject that submission. The purpose of the rule enunciated by McLelland J in Johnson Matthey was that where, as a result of negotiations, parties have entered into a formal written contract, short of a claim for rectification (so as to suggest that the true agreement was other than as recorded in the writing) it should not be open to them to contend that they had in fact agreed informally on something other than what was recorded in the document. Entirely different considerations apply in respect of post-contractual conduct. After a formal contract is made, parties may so conduct themselves as to treat provisions of the contract as no longer relevant or varied in some way or suspended in operation. A representation made post-contractually that a contractual right will not be enforced is the classic territory of promissory estoppel. As Lord Cairns LC said in Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 (emphasis added):-

afterwards

83 Although this was said in the field of equitable (promissory) estoppel, there is a substantial overlap between many of the species of estoppel [as to which see Commonwealth v Verwayen, 410-411 (Mason CJ), 431-2 (Deane J)] and application of this approach in the field of conventional estoppel is apt [cf MK & JA Roche v Metro Edgley, [72]]. This is particularly so, given that, notwithstanding that Mr Weber eschewed reliance on equitable estoppel, and while accepting that there remains a separate doctrine of common law conventional estoppel [MK & JA Roche v Metro Edgley, [71], the analogies between conventional estoppel and equitable (promissory) estoppel in the present context are considerable and close. Thus, in promissory estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of a legal relationship with the defendant; (2) that the defendant has induced or acquiesced in the plaintiff’s adoption of that assumption; (3) that the plaintiff has acted in reliance on its assumption; (4) that the defendant knew or intended that the plaintiff so act; and (5) that it will occasion detriment to the first party if the assumption is not fulfilled [Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428-429 (Brennan J)]. In conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption. It is inherent in the idea of a mutually agreed or assumed convention that each party knew or intended that the other act on that basis. And it seems that a conventional estoppel will not arise unless departure from the assumption will occasion detriment to the plaintiff [MK & JA Roche v Metro Edgley, [72], and see the discussion below].

84 There is in my judgment no reason why a mutual assumption as to a state of affairs made by two contracting parties arising from their conduct after the contract is made should in this respect be in any different a position from a unilateral assumption made by one party but known to and encouraged or acquiesced in by the other. The policy considerations which informed McLelland J’s decision – that the stability of commercial relationships and dealings would be threatened if, after deliberately recording their agreement in permanent written form, they were subject to the risk of having it yield to the inherently less reliable evidence of oral statements made during the course of negotiations – do not have the same force when it comes to post-contractual conduct, because in the latter context what is set up is not an argument that the terms of the parties’ arrangements when made are to be found in the oral negotiations and not the written agreement, but rather that since the contract was made, the parties have acted on an assumed state of affairs which is inconsistent with the contractual position and has arisen as a result of conduct after the contract was made.

85 Mr Weber ultimately accepted – in my opinion correctly – that to succeed on the estoppel argument, Mr Waterman had to establish that there was a common assumption of the parties that so much of the deferred premiums endorsement as automatically ceased cover upon non-payment of an instalment did not operate, so that no failure to pay a premium instalment on time would automatically lead to cessation of cover, except where the Insurers gave notice under clause B(8). This is because, in the context of this case, it would be insufficient to establish a convention that the insurance contract remained on foot, or had not been automatically terminated, as at any particular date prior to 6 December 1998: whatever was the position prior to that date, a further default occurred on that date, and a common assumption that cover had not ceased, for example on 6 September 1998, would not avail Mr Waterman. In this respect the case is to be distinguished from MK & JA Roche v Metro Edgley, in which it sufficed to establish a common assumption that the contract was not automatically terminated in accordance with its terms on a particular date. As there is no evidence of any conduct or communication between the parties after 6 December 1998 and before the loss, Mr Waterman has to establish a convention, in place before 6 December 1998, not only that despite prior defaults cover remained in force and had not automatically ceased, but also that cover would not automatically cease if there were non-payment of an instalment in the future. This can, I think, best be described as a convention that, regardless of the express provision in the endorsement, punctual payment of premium was not essential to the continuation of cover under the policy.

86 Mr Weber submits that such a convention is established by the following matters:-

· In respect of the 1997/1998 policy, the first premium due on 6 July 1997 was paid on 16 July 1997, some ten days late, yet AAIG in writing to Mr Waterman on 18 July attaching the debit note said “We thank you for the prompt payment”.

· When the second premium was not paid punctually on 6 September 1997, despite an invoice issued on 18 August 1997, AAIG on 10 October 1997 simply wrote “To date we do not appear to have received the moneys and request payment within seven days”.

· When the third premium had not been paid when due on 6 December 1997 despite an invoice dated 19 November 1997, AAIG wrote “I know from previously that mail is a problem with you but can now offer you credit card facilities. Just sign and fill in the bottom portion of the invoice attached and fax back to this office”.

· By the renewal notice dated 13 May 1998, AAIG invited Mr Waterman to renew on the basis of the expiring terms and conditions.

· In respect of the 1998/1999 policy, the first premium due on 6 June 1998 was not paid until 21 July 1998.

· When the second premium was not paid punctually on 6 September 1998, despite an invoice issued on 11 August 1998, AAIG on 11 November 1998, presumably intending to refer to the second premium, wrote: “As this is obviously an oversight a copy of the invoice/mail order authority is attached. Your cheque or authority would be appreciated at your earliest”.

87 There is no conventional estoppel unless the parties have in fact adopted the alleged assumption as the conventional basis of their relationship [Dabbs v Seaman (1925) 36 CLR 538, 549; Con-Stan Industries, 244-5].

88 It is true that there is no explicit evidence, in precise terms, that either party assumed that punctual payment of instalments was not essential to continuation of cover. However, there is evidence from Mr Waterman, which was not the subject of challenge, that, as at January 1999, he believed that his aircraft was insured in accordance with the policy and that AAIG would get in contact with him regarding any further amount outstanding, as it had the previous year; and that evidences an assumption by him to the effect, though not in precise terms, that punctual payment in accordance with the schedule was not essential to the maintenance of cover.

89 While the mere absence of an overt assertion on the part of AAIG, when payments were late, that cover had ceased, would not establish that AAIG was necessarily acting on the basis that punctual payment in accordance with the schedule was not essential to the maintenance of cover, and while the acceptance of late payment (with reinstatement of cover) is not necessarily inconsistent with cover having ceased in the interim when the payment was not punctually made, the tenor of the correspondence to which reference has been made, when analysed and viewed as a whole, warrants the conclusion that the Insurers were not treating punctual payment of instalments as essential to the continuation of cover. Thus:-

· Although it is unclear when Mr Waterman was first notified that the first premium instalment in respect of the 1997/1998 policy, paid some ten days late on 16 July 1997, yet accepted by AAIG as “prompt payment”, was in fact due on 6 July, it was sufficiently shortly before 16 July that receipt on that date could be described as “prompt”; on the probabilities, this was after 6 July, the day on which it was due. More importantly, the response was in terms which conveyed that the Insurers accepted the payment as regular, and “prompt”. The revised policy schedule showed the date due (6 July) and the date paid (16 July); as Mr Waterman was charged premium for 365 days of the 1997/98 insurance policy, it should be concluded that the Insurers treated him as covered for the period between 6 and 16 July 1997. Thus, upon the inception of the policy, the Insurers did not treat punctual payment in accordance with the endorsement as essential to the maintenance of cover.

· AAIG’s reminder of 10 October 1997, when the second premium instalment was not paid punctually on 6 September 1997, by simply requesting “payment within seven days”, suggested that it would be acceptable if payment were made within seven days. It does not suggest that Mr Waterman would be without cover in the interim, and that prospect would be so potentially catastrophic that one would expect reference to it in those circumstances. Its terms suggest, at least implicitly, that the insurers had not ceased to cover the risk. The letter is therefore against punctual payment being treated by the Insurers as essential for maintenance of cover.

· Similarly, AAIG’s reminder, when the third premium instalment had not been paid when due on 6 December 1997, despite an invoice dated 19 November 1997, by offering credit card facilities and requesting signature and return of an authority for that purpose, and not suggesting that cover had ceased in the interim, also suggests, at least implicitly, that the insurers had not ceased to cover the risk, and is against punctual payment being treated by the Insurers as essential for maintenance of cover.

· Most significantly, the new policy schedule in respect of the 1998/1999 policy, which included the deferred premium endorsement in the same terms as the previous year’s policy except that the first instalment payment was $865.20 due 6 June 1998, does not appear even to have been issued until 19 June 1998, by which time payment was already “overdue”. Payment was made, without apparent comment, on 21 July 1998. The issue of the policy on 19 June, in the context of its being a renewal of the previous policy, when according to its terms the first instalment was already overdue, cannot be reconciled with treating punctual payment of instalments in accordance with the endorsement as essential to the continuation of cover.

· Finally, AAIG’s reminder of 11 November 1998, when the second premium was not paid punctually on 6 September 1998, despite an invoice issued on 11 August 1998, suggesting that it was an oversight and requesting “Your cheque or authority … at your earliest”, again suggests, at least implicitly, that the insurers had not ceased to cover the risk, and is against punctual payment being treated as essential for maintenance of cover.

90 Mr Oslington has submitted that the matters relied on by Mr Waterman do not warrant the conclusion that either Mr Waterman or the Insurers conducted their affairs on the footing that cover would continue, even if after rendering an invoice and a follow-up letter not only was the overdue instalment not paid, but the next instalment also became overdue: at the highest, he submits, those matters might establish that if an instalment of premium was not paid on a due date, but payment was made shortly after a reminder, then the Insurers would treat cover as continuing in force. Thus, so the submission goes, there might have been a convention that Mr Waterman would be held covered if he paid promptly after a reminder, notwithstanding that he had not paid punctually on time, but the matters relied on establish nothing about the situation if premium was not paid in response to a reminder, let alone if a further instalment became concurrently overdue; any convention could have extended only to the situation where payment was made promptly after a reminder, when only one instalment was overdue.

91 I do not overlook the requirement that a representation or assumption founding an estoppel be “clear and unequivocal”: though this has usually been recognised in the fields of equitable promissory or proprietary estoppel [see Legione v Hateley, 436-437 (Mason and Deane JJ); Woodhouse A C Israel Cocoa Limited SA v Nigerian Produce Manufacturing Co Limited [1971] 2 QB 23, 60 (Lord Denning MR); Low v Bouverie [1891] 3 Ch 82, 106 (Bowen LJ), 113 (Kay LJ)] it is plain that the requirement that a representation be clear and unequivocal applies generally to an estoppel in pais [Legione v Hateley, 435 (Mason and Deane JJ); Western Australian Insurance Company Limited v Dayton (1924) 35 CLR 355, 375 (Isaacs ACJ)], and estoppel by convention is a species of estoppel in pais. But as Mason and Deane JJ explained in Legione v Hateley, the requirement that a representation – or assumption - must be clear if it is to found an estoppel in pais or a promissory estoppel, does not mean that it must be express, and a sufficiently clear representation – or assumption - may properly be implied from words, conduct or even silence, and it is not necessary that a representation – or assumption - be clear in its entirety, it sufficing that so much of it as is necessary to found the propounded estoppel satisfies the requirement. Their Honours illustrated this by the example that a representation that a particular right will not be asserted for at least x days is not rendered, for the purposes of promissory estoppel, unclear or equivocal merely because the words used are equivocal as to whether the relevant period is x days, x plus one day or x plus two days, so that if what is said or done amounts to a clear and unequivocal representation that the particular right will not be asserted for a period of at least x days, a representation to that effect can be relied on to found an estoppel [Legione v Hateley, 438-439]. And a promise may be definite, in the sense that there is a clear promise to do something, even though exactly what is promised is not precisely defined: [Flinn v Flinn [1999] 3 VR 712, 738 (Brooking JA, Charles and Batt JJA concurring); see also Australian Crime Commission v Gray [2003] NSWCA 318, [184-200] (Ipp JA; Mason P and Tobias JA agreeing on this point)]. As Tobias JA has observed, even if a representation is insufficiently precise to give rise to a contract, that does not necessarily disqualify the representation from founding a promissory estoppel, much depending upon the circumstances in which the representation is made and the context against which it is to be considered, so that a representation will be sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted it in a particular way, which it is clearly capable of bearing and upon which it is reasonable for the representee to rely, and in those circumstances it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance. On the other hand, if it is not reasonable for the representee to rely on the meaning he attributes to the representation, then it cannot be unconscionable for the representor to deny responsibility for the detriment that the representee sustains because of that unreasonable reliance [Galaxidis v Galaxidis [2004] NSWCA 111, [93]-[94]]. Thus, the requirement that a party should not be estopped on an ambiguity does not mean that the precise terms of the assumption or representation which founds the claimed estoppel must be entirely and unequivocally clear: an estoppel can arise even though the precise terms of the assumption or representation may be difficult to ascertain, so long as it is clear that there was an assumption, and the scope of the assumption, though its full extent may be uncertain, is at least sufficient that it can be said that the defendant’s conduct would involve a departure from it.

92 Nor is it necessary that the parties, in adopting their assumption, have adverted to the express terms of the contract. As Lord Denning MR said in Amalgamated Property Co v Texas Bank [at 121]:-

There is no need to inquire whether their particular interpretation is correct or not – or whether they were mistaken or not – or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.

93 Here, the probable explanation of the matters to which reference has been made (and more probable than all others combined), when they are taken as a whole, is that at all times up to at least 11 November 1998, both parties were proceeding on the assumption that punctual payment of premium instalments was not essential to the continuation of cover, whatever might be the formal terms of the policy. While the terms and tone of the reminder letters contribute to this conclusion, the conduct of the Insurers at the time of inception of the policy, and upon renewal, by issuing policies specifying due dates for instalments after the first instalment was already overdue, is the strongest evidence, and takes the case beyond one in which, in the absence of that conduct, the reminder letters might have been explained merely as indulgences, or waivers of prior defaults, but not amount to evidence of an assumption that punctual payment was not essential. Together, the effect of these matters is to show that the Insurers and Mr Waterman were dealing with each other on the conventional basis that punctual payment of premiums was not essential to the continuation of cover, and once such a convention is established it matters not if the terms of the deferred premiums endorsement provide otherwise, nor whether or not the parties adverted to those terms.

94 Once such a convention is established, so that the requirement for punctual payment loses the essential character which it otherwise had under the endorsement, then the practical effect is that, at least without notice, neither party can insist on the strict legal position under the endorsement. Neither the duration nor the number of defaults in punctual payment can make any difference to this, because something more than continued or repeated default is required to restore essentiality to a provision which has lost it. Thus it matters not that circumstances equivalent to those which prevailed by 2 January 1999 - when, so far as the evidence establishes, there remained outstanding not only the second instalment (due 6 September 1998) but also the third instalment (due 6 December 1998) – had not previously arisen: because it was conventional that punctual payment was treated as not essential to the continuation of cover, that applied as much to a second default in punctual payment as to the first.

95 Mr Waterman’s unchallenged evidence is to the effect that he continued to act on this assumption until the loss on 2 January 1999. Mr Oslington submits that it is strong evidence against the continuation of any such assumption on the part of the Insurers, at least by early December 1998, that AAIG did not issue any invoice for the December 1998 instalment, nor any reminder letter in respect of it. However, while these matters might suggest that, whatever the position until then, by December 1998 AAIG was no longer acting on the basis that punctual payment was not essential to maintenance of cover or even that cover was still in force, adoption of such a position by or on behalf of the Insurers would involve a departure by them from the position which the parties had adopted to that point, and if the Insurers wished to revert to requiring strict compliance with the contractual terms, they were required to give notice of their intention so to do [cf Commonwealth v Verwayen, 442 (Deane J); Ajayi v R T Briscoe (Nigeria) Ltd [1964] 3 All ER 556, 559].

96 It has been submitted on behalf of the Insurers that in conventional estoppel, as in equitable estoppel, it remains necessary to establish detriment from a departure from the assumption. The Court of Appeal has so held in MK & JA Roche v Metro Edgley, [72] (Hodgson JA, Beazley and Ipp JJA concurring), and while noting the formal submission on behalf of Mr Waterman to the contrary - that this was a misapplication to conventional estoppel of dicta of Sir Owen Dixon in Grundt in respect of what is said to be the related but distinct field of estoppel in pais - I should and do take the law to be as stated by Hodgson JA: first, because conventional estoppel is not distinct from, but a sub-species of, estoppel in pais, and was encompassed by the statements of principle in Grundt from which Mr Waterman’s counsel seek to distinguish it [Legione v Hateley, 430; Grundt, 657 (Latham CJ), 675-676 (Dixon J); Thompson v Palmer (1933) 49 CLR 507, 547]; secondly, because it is fundamental to the imposition of an estoppel that it would be unjust or inequitable to permit departure from the relevant assumption [Grundt, 657 (Latham CJ), 675 (Dixon J); Thompson v Palmer, 547; Amalgamated Property Co v Texas Bank, 121 (Lord Denning MR, citing Crabb v Arun District Council [1976] Ch 179, 187, a proprietary estoppel case in which detriment was unquestionably required)], and it would not be unjust or inequitable to permit such a departure if to do so would occasion no detriment; and thirdly, because were it not so, then mutual agreement or assumption with neither consideration nor detriment would be elevated to a status equivalent to contract .

97 However, the detriment here is plain: Mr Waterman has lost the opportunity, which notice of intended departure from the assumption would have afforded him, of reinstating cover by paying the outstanding instalment, or arranging cover with an alternative insurer, before the loss was suffered.

98 Thus, in my opinion, the evidence establishes that, at least until November 1998, Mr Waterman and the Insurers conducted their affairs on the agreed or mutually assumed basis, inconsistent with the express terms of the policy, that punctual payment of premium instalments was not essential to the maintenance of cover under the policy. If either party wished to depart from that common assumption, notice was required. Although there is some evidence that the Insurers were no longer proceeding on that assumption by December 1998, there is no evidence that they gave any notice of any such change in position, nor that they would thenceforth insist upon punctual payment. Even though the facts by January 1999 were more extreme than those which established the convention – in that whereas previously payment was made promptly after a reminder letter, but by 2 January 1999, Mr Waterman’s default extended to two instalments, and did not involve payment even after the November 1998 reminder – they remained within the scope of the common assumption that strict compliance with the timetable for payments of instalments was not essential to the maintenance of cover.

99 Accordingly, in my opinion, Mr Waterman has made out a case of estoppel such as to preclude the Insurers from relying, in the events which have happened, on the provisions of the deferred premiums endorsement.

Conclusion and Orders

100 Properly construed, the “deferred premiums endorsement” does not confer on the Insurers a right to cancel the policy if a premium instalment is not paid punctually, but effects an automatic cessation of cover, relieving the Insurers from liability to pay claims for losses arising while cover has ceased, unless and until cover is reinstated. Such a cessation of cover is not a cancellation of the policy by the insurer within Insurance Contracts Act, s 59. Accordingly, the Insurance Contracts Act did not have the effect that, absent notice of intention to cancel, cover remained in place as at 2 January 1999, despite the instalments of premium due on 6 September and 6 December 1998 not having been paid.

101 Even if the letter of 11 November 1998 conveyed an implicit suggestion that the Insurers were remaining “on risk”, so as to waive of the failure to pay the September 1998 instalment punctually, no demand ever issued for the third instalment, nor any reminder, nor was any payment made, nor was there any act of the Insurers after default was made in payment of the December 1998 instalment, which could have waived that default. Thus, assuming the letter of 11 November 1998 to operate as a waiver of all prior defaults, and that cover remained in force up to 6 December 1998, there was no waiver following the default of 6 December 1998, and the waiver case must fail.

102 However, at least until November 1998, Mr Waterman and the Insurers conducted their affairs on the mutually assumed basis, inconsistent with the express terms of the policy, that punctual payment of premium instalments was not essential to the maintenance of cover under the policy. If either party wished to depart from that common assumption, notice was required. If the Insurers were no longer proceeding on that assumption by December 1998, there is no evidence that they gave any notice of any such change in position, nor that they would thenceforth insist upon punctual payment. Even though the facts by January 1999 were more extreme than those which established the convention – in that whereas previously payment was made promptly after a reminder letter, but by 2 January 1999, Mr Waterman’s default extended to two instalments, and did not involve payment even after the November 1998 reminder – they remained within the scope of the common assumption that strict compliance with the timetable for payments of instalments was not essential to the maintenance of cover. Accordingly, Mr Waterman has made out a case of estoppel such as to preclude the Insurers from relying, in the events which have happened, on the provisions of the deferred premiums endorsement.

103 As that is the only basis upon which the Insurers have declined indemnity, it follows that the Insurers are liable to indemnify Mr Waterman under the policy for the loss of the aircraft on 2 January 1999.

104 There should be judgment that the defendants pay the plaintiff the sum insured ($40,000), less the outstanding premium ($1,297.80), plus interest on the difference ($37,702.20) under the Insurance Contracts Act from 2 February 1999 (which I take to be a reasonable time for investigation and settlement of the claim) until judgment, which is 6 years and 261 days. The mean of the rates of the 10-year Treasury Bond yield at the end of each of the half financial years ending during that period is 5.75%, so the applicable interest rate is 8.75% [Insurance Contracts Regulation, reg 32]. The total interest is $22,152.65, and the total award $59,854.85.

105 I give judgment that the defendants pay the plaintiff $59,854.85. I order that the defendants pay the plaintiff’s costs. I order that the exhibits be returned at the expiration of 28 days, unless an application for leave to appeal has by then been filed.

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Citations

Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066

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CITATION:	Waterman v Gerling Australia Insurance Company P/L & Anor [2005] NSWSC 1066
HEARING DATE(S):	15 September 2005
JUDGMENT DATE :	21 October 2005
JUDGMENT OF:	Brereton J

CATCHWORDS:	INSURANCE - Marine and Aircraft Insurance - non-payment of premium instalments - whether clause providing for cover to cease on non-payment on due date confers election on insurer or has automatic effect - whether automatic cessation of cover is "cancellation" within Insurance Contracts Act, s 59 - distinction between provision for cancellation and provision limiting liability of insurer - whether notice under Insurance Contracts Act, s 59 required. - CONTRACT - Waiver - election between inconsistent rights - waiver of one default does not waive subsequent default. - ESTOPPEL - Estoppel by convention - whether parole evidence of post-contractual conduct admissible to set up conventional estoppel - extent of requirement for "clear and unambiguous" convention where inconsistent with formal contract - whether detriment is a necessary element of conventional estoppel.
LEGISLATION CITED:	Insurance Contracts Act 1984 (Cth), ss 11, 39, 52, 53, 58, 59, 60, 62, 63 Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
CASES CITED:	Aetna Life of Australia & New Zealand Ltd v ANZ Banking Group Ltd [1984] 2 NZLR 718; (1985) 3 ANZ Ins Cas 60-612 Ajayi v R T Briscoe (Nigeria) Ltd [1964] 3 All ER 556 Amalgamated Investment and Property Co Limited (in liq) v Texas Commerce International Bank Limited [1982] QB 84 Australian & New Zealand Banking Group Limited v Aetna Life Of Australia & New Zealand Limited (1983) 2 ANZ Ins Cas 60-518 Australian Co-operative Foods Ltd v Norco Co-operative Ltd (1999) 46 NSWLR 267 Australian Crime Commission v Gray [2003] NSWCA 318 Bankstown Football Club Ltd v CIC Insurance Limited (No 3) (NSWSC, Cole J, 16 December 1993, unreported, BC9302335) Boynton v Monarch Life Insurance Company of New Zealand Ltd [1973] 1 NZLR 606 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Con-Stan Industries Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Crabb v Arun District Council [1976] Ch 179 Craine v Colonial Mutual Fire Insurance Co Limited (1920) 28 CLR 305 Dabbs v Seaman (1925) 36 CLR 538 Ellery v Beck and The Royal Insurance Fire and General (NZ) Limited (1990) 6 ANZ Ins Cas 610045 Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 Farmers Mutual Insurance Limited v Slavich (1995) 9 ANZ Ins Cas 61-295. Flinn v Flinn [1999] 3 VR 712 Foran v Wight (1989) 168 CLR 385 G. A. Lovell & Sons Pty Ltd v FML Assurance Ltd (1982) 2 ANZ Ins Cas 60-464 Galaxidis v Galaxidis [2004] NSWCA 111 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 Hughes v Metropolitan Railway Co (1877) 2 App Cas 439 IW v City of Perth (1997) 191 CLR 1 Johnson Matthey Limited v A C Rochester Overseas Corp (1990) 23 NSWLR 190 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Legione v Hateley (1983) 152 CLR 406 Low v Bouverie [1891] 3 Ch 82 McCormick v National Motor & Accident Insurance Union Limited (1934) 40 Com Cas 76 Menzies v Security & General Insurance Co (NZ) Limited (1990) 6 ANZ Ins Cas 61-029 MK & JA Roche Pty Limited v Metro Edgley Pty Limited [2005] NSWCA 39 New Zealand Shipping Co v Societe Des Ateliers et Chantiers de France [1919] AC 1; [1917] 2 KB 717 Newbon v City Mutual Life Assurance Society Limited (1935) 52 CLR 723 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Newnham v Baker [1989] 1 QdR 393; (1988) 5 ANZ Ins Cas 60-885 R v Bolton; Ex parte Beane (1987) 162 CLR 514 Re Cafdawn Pty Limited and Waltons Stores (Interstate) Limited (Fed CA, Beaumont J, 28 March 1991, unreported) Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153 SkyWest Aviation Pty Limited v Commonwealth of Australia (1995) 126 FLR 61 Smith v Associated Dominions Assurance Society Pty Ltd (in liq) (1956) 95 CLR 381 Spooner-Kenyon v Yorkshire-General Life Assurance Company Limited (1982) 2 ANZ Ins Cas 60-476 State Rail Authority of NSW v Heath Outdoor Pty Limited (1986) 7 NSWLR 170 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Thompson v Palmer (1933) 49 CLR 507 Turner v Metropolitan Life Assurance Company of New Zealand Ltd (1988) 5 ANZ Ins Cas 60-861 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 Western Australian Insurance Company Limited v Dayton (1924) 35 CLR 355 Willcocks v New Zealand Insurance Co [1926] NZLR 805 Wimbush v Rothwell & Tinkler [1933] NZLR 1167 Woodhouse A C Israel Cocoa Limited SA v Nigerian Produce Manufacturing Co Limited [1971] 2 QB 23
PARTIES:	John McIntyre Waterman (plaintiff) Gerling Australia Insurance Company Pty Limited (first defendant) Indemnity Insurance Company of North America (second defendant)
FILE NUMBER(S):	SC 50184 of 2004
COUNSEL:	R J Weber SC and I R Pike (plaintiff) B C Oslington QC and M K Condon (defendants)
SOLICITORS:	Lovett & Green (plaintiff) Norton White (defendants)