Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service

[2019] WASCA 114

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction of contracts in writing
3. › Contract comprising more than one document
4. › Manner in which tension or inconsistency between different documents comprising parts of a contract is to be resolved
5. › Whether pre-printed standard terms or specifically drawn schedule should prevail
6. › Presumption against surplusage
7. › Whether words in schedule should be construed as superfluous
1. Contract
2. › Construction of contracts in writing
3. › Correction of obvious errors as a matter of construction
4. › Whether inclusion of words in contract constitutes obvious error
5. › Test of clear necessity to avoid absurdity or inconsistency
6. › Distinction between construction and rectification
1. Contract
2. › Construction of contracts in writing
3. › Role of pre-contractual negotiations and proposals
4. › Whether insurance proposal admissible as surrounding circumstance
5. › Objective theory of contract
6. › Distinction between what parties said and what parties meant to say
1. Insurance
2. › Contract of insurance
3. › Proper construction of contract of insurance
4. › Contract comprising standard policy wording and schedule
5. › Interaction of policy wording and schedule
6. › Whether phrase in schedule defining insured should be construed as superfluous
7. › Whether naming non-contracting party as insured is inconsistent with policy wording
8. › Whether all principals, contractors and subcontractors have 'You' cover under legal liability section

Quick Take

Where an insurance policy comprises a standard policy wording and a schedule, and the schedule names a class of persons (such as 'all Principals, Contractors, and Sub-Contractors') as insured, the court will give effect to that naming even where it creates tension with provisions of the standard policy wording. The word 'named' in a policy definition is not confined to identification by proper noun and extends to specification by class. The presumption against surplusage carries more weight in respect of provisions in a schedule specifically drawn for the particular contract than in respect of pre-printed standard terms. Pre-contractual proposals that do not form part of the contract are of little assistance in the construction exercise and cannot be used to reason that words in the contract were included by mistake.