Coffison v Australian Casualty and Life Ltd [2000] QDC 403

DISTRICT COURT OF QUEENSLAND CITATION: Coffison v. Australian Casualty & Life Limited [2000] QDC 403 PARTIES: JANE CAROLYN COFFISON as Executor of DAILE ALFRED COFFISON deceased Plaintiff and AUSTRALIAN CASUALTY & LIFE LIMITED (CAN 000 333 844) Defendant FILE NO/S: 29 of 1999 DIVISION: PROCEEDING: Civil ORIGINATING COURT: District Court at Mackay DELIVERED ON: 20 December 2000 DELIVERED AT: Brisbane HEARING DATE: 7 December 2000 JUDGE: Judge J.M. Robertson ORDER: (1) The plaintiff’s claim against the defendant is dismissed. (2) The plaintiff will pay the defendant’s costs of and incidental to the action to be assessed on the standard basis or as agreed. CATCHWORDS: CONTRACT LAW; INSURANCE CONTRACT; CONSTRUCTION; life insurance policy taken out by employer for benefit of employees in compliance with statutory obligation; insurance contract purportedly terminated by employer without notifying employees; death of employee; whether estate of deceased employee entitled to recover under policy; whether policy terminated validly at law; agreed set of facts; exceptions to doctrine of contract; “non-party assured”; equitable estoppel Graham Evans & Co (Qld) Pty Ltd v. Vanguard Insurance Co. Ltd (1986) 4 ANZ Ins. Cas. 60-609; Trident General Insurance Co. Ltd v. McNeice Bros. Pty. Ltd (1988) 165 CLR 107; 62 ALJR 508; Commonwealth v. Vermayen (1990) 170 CLR ; Byrne v. Australian Airlines Ltd (1995) 185 CLR 410; B P Refinery (Western Port) v Shire of Hastings (1977) 16 ALR 363; GPS Power P/L and Ors v Gardiner Willis and Assoc -- 1 of 20 -- 2 P/L [2000] QCA 495; Insurance Contracts Act 1984 ss 48, 48A and 48AA; Property Law Act 1974 (Qld) s 55. COUNSEL: Mr Bolsch S.C. for the plaintiff. Mr Holyoak for the defendant. SOLICITORS: Taylors Solicitors for the plaintiff. McInnes Wilson Solicitors for the defendant. Introduction [1] In her claim filed on 8 November 1999, the plaintiff seeks the following orders: (a) a declaration that at all material times the defendant was the holder of a policy of insurance under which the benefits were payable on the death of DAILE ALFRED COFFISON (b) a declaration that pursuant to the terms of a group life plan policy No. 30112 the sum of ONE HUNDRED AND EIGHT THOUSAND DOLLARS ($180,000.00) BECAME PAYABLE TO OR AT THE DIRECTION OF Timtalla Pty Ltd (ACN 000 333 844) for the benefit of the estate of DAILE ALFRED COFFISON deceased upon the occurrence of the death of DAILE ALFRED COFFISON (c) an order that the defendant pay to the plaintiff the sum of $180,00-00 (d) damages for breach of contract (e) interest pursuant to the provisions of the Insurance Contracts Act 1984 or, alternatively, pursuant to the provisions of the Supreme Court Act 1995 -- 2 of 20 -- 3 (f) costs. [2] By prior arrangement, the Court agreed to hear and determine the matter during the current criminal sittings of the District Court at Mackay on the basis of an agreed set of facts. The Court was therefore not required to make findings of fact. Counsel for both parties provided comprehensive written submissions in advance of the trial, and oral submissions concentrated on the main issue which related to construction of a contract of insurance. The sensible approach of both parties has meant that the trial lasted under an hour and substantial costs have been avoided. Agreed facts [3] The facts agreed between the parties are:- 1. “The Plaintiff is the Executor of the Estate and personal representative of DAILE ALFRED COFFISON deceased (“the deceased”). 2. The deceased died at Lorne Hill Station in the State of Queensland on the 10th of November 1993 when the helicopter which he was flying crashed to the ground. 3. As at the date of his death the deceased was employed by Timtalla Pty Ltd (ACN 010 951 836) (“Timtalla”) as a pilot. 4. Timtalla was and is a company duly incorporated according to law and traded under the name of “Chopperline”. -- 3 of 20 -- 4 5. By a policy of insurance entered into between the Defendant and Timtalla Pty Ltd (“the Policy”), the Defendant agreed to provide an insurance scheme to cover certain eligible employees of Timtalla. The scheme was named the “Chopperline Group Life Plan” (“the Plan”). 6. The Defendant:- (a) was and is a company duly incorporated according to law; and (b) a duly licensed insurer. 7. The Policy was wholly in writing and constituted by:- (a) Policy number 30112 “Policy Document for the Chopperline Group Life Plan” undated commencing 1st March 1991 (copy attached); and (b) A schedule of members entitled “Chopperline Group Life Plan Group Life Schedule as at 1st March 1993” (copy attached). 8. At all material times the deceased was a member of the Group Life Plan. 9. The Policy was renewable annually on the 1st of March. 10. The Policy was renewed on 1st March 1993. 11. Upon renewal of the Policy on 1st March 1993: (a) The yearly premium was payable monthly by the policy owner; and (b) The Policy provided a death benefit in the sum of $180,000.00. 12. Timtalla:- -- 4 of 20 -- 5 (a) Was the policy owner of the Policy; and (b) Paid all premiums due under the Policy. 13. The deceased was not a party to the Policy. 14. On 14th October 1993, Timtalla requested the Policy be terminated that day (a copy of facsimilie transmission attached). 15. On 18th October 1993, the Defendant advised Timtalla that the Policy was terminated with effect from 14th October 1993 (a copy of letter with re- costed schedule attached). 16. Timtalla did not pay and the Defendant did not claim, or receive, any payment of premium for any period after 14th October 1993 in repect of the Policy from Timtalla Pty Ltd or at all. 17. The deceased was not advised by Timtalla at any time prior to his death of:- (a) The request by Timtalla that the Policy be terminated; (b) The advice of the Defendant on 18th October 1993 that the Policy had been terminated. 18. On or about 13th December 1993 (copy letter attached), the Defendant declined to accept or consider a claim for benefits under the Policy in respect of the death of the deceased on the basis the Policy had been terminated on the 14th of October 1993. -- 5 of 20 -- 6 19. By letter dated 15th July 1999, Timtalla directed that the benefit be payable in respect of the death of the deceased to be paid to the Plaintiff, Jane Carolyn Coffison (copy letter attached). 20. The Defendant refuses to pay the benefits under the Policy to or at the direction of Timtalla Pty Ltd on the basis that the Policy had been terminated on 14th October 1993. 21. The rate of interest applicable under section 57 of the Insurance Contracts Act 1984 from 13th January 1994 is 10.25%.” [4] The Policy Number 30112, undated commencing 1 March 1991, (“the Policy) is (relevantly) in these terms: “This Policy is issued by Australian Casualty and Life Limited to the Policyowner. The Policy establishes a Group Life Plan (the Plan) and subject to the payment of the relevant premium and Policy Fee provides insurance for Members of the Plan of the following terms and conditions: 1. DEFINITIONS 1.1 For the purpose of this Policy “Accident Cover” means cover against Death as a result directly and solely of an accident caused by violent external and visible means “Employer” means the employer described in the Schedule, if applicable, and includes any Associated Employer. “Insured Amount” means the amount payable by Australian Casualty and Life for Insurance Cover under the Plan.” -- 6 of 20 -- 7 “Member(s)” means a person who has joined the Plan in accordance with the eligibility rules agreed between Australian Casualty and Life and the Policyowner. 5. PREMIUM AND POLICY FEE 5.1 The Policy remains in force provided the premium and the Policy Fee are paid within 30 days of the Premium Due Date. Should the premium and the Policy Fee, or any part of the same, not be paid before the expiration of that period Australian Casualty and Life reserves the right to terminate the Policy after giving written notice to the Policyowner. Should the Policy not be terminated, Australian Casualty and Life reserves the right to charge interest on any overdue premium. 7. CLAIMS 7.1 Benefits under this Policy shall become payable to or in respect of a Member in the event of:- (i) the Member’s death; or … . 7.2 Written notice of any claim (or any potential claim) must be forwarded to Australian Casualty and Life as soon as possible. Australian Casualty and Life must be furnished -- 7 of 20 -- 8 with all proofs and other information it requires to deal with a claim. 7.3 Australian Casualty and Life shall pay claims to the Policyowner or as directed by the Policyowner. 8. INDIVIDUAL TERMINATION While the Plan remains in force Insurance Cover ceases for a Member upon the happening of the following, whichever is earlier- (a) attaining the Insurance Cessation Agel or (b) ceasing to be a Member. 9. POLICY TERMINATION 9.1 The Policyowner may terminate this Policy upon giving one (1) month’s written notice. 9.2 Australian Casualty and Life may terminate this Policy upon giving rise to the cover and the resulting Waiting Period commenced prior to the termination date. 10. CONTINUATION OPTION On termination of membership of this Plan before age 60 (other than as a result of Total and Permanent Disablement) a person may, within 30 days from the date of termination, request Australian Casualty and Life to issue an individual policy providing benefits equivalent to those secured under the Plan, subject to a satisfactory AIDS declaration and a negative Blood (HIV) Test (if required by -- 8 of 20 -- 9 Australian Casualty and Life), having regard to the individual policies then available from Australian Casualty and Life. Any policy so issued will be subject to the standard premium rates and terms then applicable and any special conditions which apply to the former Member’s cover under the Plan. Insurance Cover for the former Member will continue until the following events, whichever is earlier – (a) 30 days from the date of termination; or (b) the Member effecting an individual insurance policy. 13. NOTICES All notices required under this Policy shall be in writing. A notice to the Policyowner shall be sent to the address last advised by the Policyowner. A notice to Australian Casualty and Life is to be sent to its Head Office or to its Principal Office in the State or Territory at which the Policy is registered. SCHEDULE GROUP LIFE POLICY NO: 30112 POLICYOWNER: Timtalla Pty Ltd EMPLOYER: Timtalla Pty Ltd Trading as Chopperline GROUP LIFE FUND: Chopperline Group Life Plan -- 9 of 20 -- 10 COMMENCEMENT DATE: 1 March, 1991 PREMIUM DUE DATE: 1 March of each year ANNUAL REVIEW DATE: 1 March of each year GUARANTEE PERIOD: 3 Years INSURANCE COVER: Death and Total and Permanent Disablement Cover INSURANCE CESSATION AGE: Death Cover: 65 years Total and Permanent Disablement Cover: 65 years.” [5] On 14 October 1993, Chopperline wrote (by fax) to the defendant in these terms: “We request that the above Policy be terminated today. In regard to your letter to Mr Andrew McMaster dated 21st September 1993, which we received notice of on 12th October 1993, would you forward us a copy of the recosted schedule for the period 1st March 1992 to 30th August 1993.” [6] The defendant replied by fax on 18 October 1993 in these terms: “We refer to your facsimile of 14 October 1993 concerning the above fund. Enclosed please find recosted schedule as requested. We advise that the policy has been cancelled with effect from 14 October 1993. Would you please arrange to cancel the relevant Bank order immediately.” [7] As a consequence of the death of the deceased on 10 November 1993, an approach was made to the defendant for a claim form. The defendant responded by fax message on 13 December 1993 in the following terms: -- 10 of 20 -- 11 “I refer to your telephone conversation with Bruce Fitness and to Chopperline’s facsimile dated 7 December 1993 requesting us to issue a claim form under policy number B/P 30112. Unfortunately, we will be unable to issue a claim form as this policy terminated with effect from 14 October 1993 and I believe the employee in question died after this date. Australian Casualty & Life Limited are not liable for any claims occurring after this date as there is a written agreement between the two parties evidenced by Chopperline’s letter dated 14 October 1993 requesting the Policy be terminated with effect from the date of their letter, and Australian Casualty & Life’s letter dated 18 October 1993 accepting termination with effect from the date requested. As the deceased died on 10 November 1993, Australian Casualty & Life Limited are not liable for this claim and therefore suggest that the death claim documentation be sent to the Chopperline’s new insurer, should this business have been placed elsewhere. Please contact me on the direct line given below if you have any queries.” [8] On 15 July 1999, Chopperline wrote to the defendant in the following terms: “By a policy of insurance contained within a document described as ‘Policy Document for Chopperline Group Life Plan’ (Policy No. 30112) Australian Casualty and Life Limited insured the employees of Timtalla Pty. Ltd. (which carried on business as “Chopperline”) over a period which included a period commencing on 1 July 1993. Daile Alfred Coffison, an employee of Timtalla Pty. Ltd. was, inter alia, a named member of the Group Life Plan, and was killed in an accident during the course of his employment on 10 November 1993. By a fascimile dated 13 December 1993, Paul Trigg, on behalf of Australian Casualty and Life Limited, rejected a claim for payment of the insured sum as a result of the death of the deceased on the ground that the policy had been terminated with effect from 14 October 1993. It is the case that Timtalla Pty. Ltd. by letter dated 14 October 1993, gave notice of termination. However, it was a term of the policy that termination by the policyholder took place by giving one month’s notice. In those circumstances the notice of termination could only have taken effect on 14 November 1993, after the date of the death of the deceased. Alternatively, it was also a term of the policy that insurance cover for a former member would continue until the earlier of 30 days from the date of termination or the member’s effecting an individual insurance policy. By this provision the cover provided under the -- 11 of 20 -- 12 policy was extended until at least 30 days after 10 November 1993, possibly 30 days after 14 November 1993. In either event the life cover provided by the policy in respect of the deceased continued at the time of death. Further, termination without the express consent of the deceased, who as an additional named insured was a co-insured, was ineffectual to terminate the liability of the insurer under the policy. . The Executrix of the estate of the deceased has sued Timtalla Pty. Ltd. as a result of the refusal by Australian Casualty and Life Limited to indemnify in respect of the death of the deceased. Unless Australian Casualty and Life Limited pays or undertakes to pay the Executrix, Jane Carolyn Coffison, within seven days Timtalla Pty. Ltd. Has no choice but to join Australian Casualty and Life Limited to the proceeding without further notice. Please treat this letter as a further direction pursuant to subclause 7.3 for the payment of the insured sum to Jane Carolyn Coffison.” [9] By letter dated 26 July 1999, AXA Australia replied as follows: “Thank you for your letter dated 5 July 1999 regarding the above plan. Unfortunately, as stated in our fax from Paul Trigg dated 13 December 1993, copy attached; we regret that we must decline the claim. As stated in the policy document under Section 9.3, copy attached; upon termination, Australian Casualty and Life will remain liable for Insurance Cover where the event giving rise to the cover and the resulting Waiting Period commenced prior to the termination date. The death of Mr Coffison occurred on 10 November 1993; and therefore not prior to the termination date of 14 October 1993. This means that Australian Casualty & Life is not liable for payment of the claim. It is our understanding that the plan was moved to Citicorp under takeover terms, and that any claims resulting thereafter are their responsibility. Should you require any further information, please don’t hesitate to contact me on (02) 9367 2134.” [10] The principal thrust of the plaintiff’s argument at trial was directed at the proper construction of Clauses 8, 9 and 10 of the Policy. Mr Bolsch argues by reference to -- 12 of 20 -- 13 the opening words of the policy that the plan is established by the policy. That is clearly correct. It follows that a termination of the policy constitutes a termination of the plan. Such a construction of these clauses in the policy is consistent with basic principles of rules of construction applicable to commercial contracts generally: Graham Evans & Co (Qld) Pty Ltd v. Vanguard Insurance Co. Ltd (1986) 4 ANZ Ins. Cas. 60-609 at 74, 101. [11] Mr Bolsch then argues that the death of the deceased “within 30 days of termination” is an “event” caught by Clause 7.1(1) of the policy. He relies on these words in Clause 10: “Insurance cover for the former member will continue until the following events, whichever is the earlier: (a) 30 days from the date of termination… ” [12] I think this argument overlooks the clear distinction between Clauses 8 and 10, involving termination of membership, and Clause 9, which is to do with termination of the policy. The words relied on by Mr Bolsch in Clause 10 must be read subject to the express terms of that Clause, which commences with the words: “On termination of membership of this Plan”. Clause 9 clearly deals with termination of the policy by either the Policy Holder or the defendant. Relevantly Clauses 9.1 and 9.2 are expressed in discretionary and not mandatory terms, so that the Policyowner may terminate upon giving only (1) month’s notice (9.1) and the defendant “may terminate this Policy upon giving three (3) months written notice.” (9.2) [13] The policy makes a clear distinction between the insurance cover provided for the Plan as a whole, which subsists for the members for the time being, on the one -- 13 of 20 -- 14 hand, and membership of the plan on the other. Although it is correct to say that because the Policy establishes the Plan, termination of the Policy terminates the plan, it is not correct, on a proper construction of the policy as a whole, to say that termination of the policy means the same as “termination of membership” so as to invoke the benefits set out in Clause 10(a). [14] Mr Bolsch does not argue strongly that the Policy was not terminated by agreement between the parties to the contract, constituted by the letters dated 14 October 1993 and 18 October 1993 respectively. As I have noted, Clause 9 is not mandatory in terms. The mere fact that the policy provides a method by which either party may unilaterally terminate the contract does not mean that this is the only means by which the contract can be terminated, unless the contract expressly or on its proper construction states otherwise (“The Laws of Australia”, Part 7.8, Chapter 2, para.[7]). There was an offer to terminate the contract by the Policy Owner on 14 October 1993. The offer was accepted by the defendant’s letter of 18 October 1993. The consideration is constituted by the release of both parties from their continuing obligations under a partially performed contract. [15] It follows that the policy was properly terminated by agreement between the parties. Termination of the policy ended the Plan. At the date of the death of the deceased, on a proper construction of the policy, there did not exist a contract of insurance between the deceased’s employer and the defendant. [16] The next argument advanced by Mr Bolsch involves a consideration of the judgment of the High Court in Trident General Insurance Co. Ltd v. McNeice Bros. Pty. Ltd (1988) 165 CLR 107, 62 ALJR 508. In that case, the High Court extended the law of -- 14 of 20 -- 15 contract by creating an exception to the doctrine of privity of contract, and to the requirement that consideration should move from the promisee. In Trident, the High Court dismissed an appeal from a decision of the NSW Court of Appeal in which it was held that a third party, who was not a party to the insurance policy in question, but fell within the class of persons expressed to be insured by the policy, was indemnified in respect of an award of damages for negligence made against the third party. Mr Bolsch fairly acknowledges a major distinguishing feature in this case, and that is the deceased is not within a class of persons expressly insured by the policy. In Trident, the respondent clearly fell within a class of insured persons under the express terms of the contract, whereas, the policy here between the respondent and the defendant established the plan which in turn provided insurance cover for members of the plan. [17] As Mr Holyoak points out, this case was decided on the basis of the law prior to the Insurance Contracts Act 1984, which applies in this case. In Trident, the event giving rise to liability under the policy of insurance occurred in 1979. Mr Holyoak submits, I think correctly, that the deceased was a beneficiary of the policy, but was not a co- insured, unlike the respondent in Trident. [18] Mr Bolsch relies specifically on some passages in the judgment of Gaudron J., and submits that the general principle that contracts of insurance for the benefit of third parties might be enforced by third parties, can, as a matter of logic and principle, be extended to the case of a non-party beneficiary even if that person is not described in the contract as being within a class of persons insured. In the NSW Court of Appeal, the leading judgment was delivered by McHugh JA (as His Honour then was). A passage from his judgment clearly makes the point that the respondent (McNeice) was indeed a “non-party assured”. His Honour said: -- 15 of 20 -- 16 “this Court should now declare that at common law a non-party assured is, and has been for some time at common law, able to sue on a written policy of insurance.” Trident General Insurance Co. Ltd v. McNeice Bros. Pty Ltd (1987) 8 NSWLR 270 at 287-288. [19] His Honour’s acceptance of this proposition was described as “far-reaching” by Mason CJ. and Wilson J. in their joint judgment (at p.510); nevertheless, on the facts of that case, and importantly because the respondent was an “assured” under the contract of insurance, their Honours agreed with McHugh JA. As I have noted, Mr Bolsch relies on a number of passages in the judgment of Gaudron J., who was one of the majority, along with Mason CJ, Wilson J. and Toohey J., Brennan and Dawson JJ dissented, while Deane J. agreed with the majority but on a different point. The passages relied upon establish a significant difference in reasoning between Her Honour’s reasons and those of Mason CJ. and Wilson J. and, therefore, are dicta only. It is not suggested that Her Honour’s comments have since been adopted as representing a further (and perhaps significant) extension of the law of contract. At p.537 (ALJR), Her Honour said: “The source of the obligation to perform a contractual promise is the promise itself, but there is no reason in logic or in law why the existence of a contract should preclude the existence of another obligation ordinarily corresponding in content and duration, but having its source in law rather than in contract.” Her Honour’s reasoning is based on concepts of unjust enrichment: “In my view it should now be recognised that a promisor, who has accepted agreed consideration for a promise to benefit a third party is unjustly enriched to the extent that the promise is unfulfilled and the non-fulfillment does not attract legal consequences… The possibility of unjust enrichment is obviated by recognition that a promisor who has accepted agreed consideration for a promise to benefit a third party owes an obligation to the third party to fulfil that promise and that the third party has a corresponding right to bring action to secure the benefit of the promise”. (at 538) -- 16 of 20 -- 17 [20] As Her Honour noted earlier in her judgment, she confined this extension of principle to “corresponding in content and duration with the contractual obligation”. At 539, Her Honour noted: “Thus should the obligation as between promisor and promisee be varied, modified or extinguished, then correspondingly the obligation of the promisor to the third party will be varied, modified or extinguished. It may be that in a particular case there will be some intervening circumstance which will create an obligation not to vary, modify or extinguish the promise, or which will create an assumed state of affairs such that the mutual rights and obligations of the promisor and third party are to be ascertained by reference to the state of affairs rather than by reference to the contract between the promisor and the promisee.” [21] Mr Bolsch submits that this is such a case, although he did not precisely identify the “intervening circumstance” in the agreed facts. There is nothing in Her Honour’s remarks that detract from the original finding of McHugh JA. that the respondent was indeed “an assured”. Her Honour does not attempt to apply her remarks to the particular facts of the case or to an insurance contract. With respect to her, her remarks are persuasive, and indicative of the reality that human commercial affairs are infinitely variable; and the state of the law of contract may, in circumstances such as pertain here, lead to an apparent injustice to a third party. But sympathy for the plaintiff’s position plays no part in judicial reasoning. Importantly, Mr Bolsch does not say that Her Honour’s general remarks have been taken up by any subsequent High Court. It is not for a judge of my level to unilaterally change the law and, in my opinion, the majority judgment in Trident does not assist the plaintiff. Gaudron J’s observations will remain, for the present, as enlightened obiter dicta. [22] Statutory intervention in this area, for example sections 48, 48A and 48 AA of the Insurance Contracts Act 1984, potentially benefit a third party more than the -- 17 of 20 -- 18 extension of the common law as a result of the majority judgment in Trident. Similarly, under s.55(2) of the Property Law Act 1974 the parties lose their right to rescind and modify the contract without the consent of the third party. Section 55 does not assist the plaintiff as its application is dependent upon acceptance by the beneficiary of the benefit provided under the contract. There is no evidence of any act by the deceased which could constitute an acceptance and enliven the operation of that section. [23] To enliven principles of equitable estoppel, as submitted by Mr Bolsch in reliance on an extended application of the principles discussed in Trident, there are a number of basic pre-requisites. I adopt Mr Holyoak’s oral submission, in which he set out these pre-requisites by reference to “The Laws of Australia” Part 35.6, Chapter 3, para 40: “(I) the party claiming the estoppel must have adopted an assumption as the basis of an act or omission; Commonwealth v. Vermayen (1990) 170 CLR 394 per Mason CJ. at 413, Deane J. at 444. (2) the claimant, upon the basis of the assumption, must have so acted or abstained from acting, that a detriment will be suffered if the person against whom the estoppel is asserted is afterwards allowed to set up rights inconsistent with it; Vermayen (ibid) per Deane J. at 444. (3) the party against whom the estoppel is alleged must have played such a part in the adoption of, or persistence in the assumption, that freedom to act otherwise than in a manner consistent with it would be unfair or unjust; Vermayen (ibid) per Deane J. at 444. [24] A perusal of the agreed facts immediately reveals that there is no evidence to support any of these basic requirements. Any claim based on estoppel must fail. -- 18 of 20 -- 19 [25] Finally, the reply belatedly raises the issue of implied terms. In summary, the plaintiff contends that the contract of insurance contained implied terms requiring notification of any termination to the beneficiaries, including the deceased, and any termination without such notice is ineffectual. I have found that the contract of insurance was terminated by agreement prior to 14 October 1993. I have also determined that the relevant clauses in the contract are clear in terms. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the High Court reaffirmed the statement of principle from BP Refinery (Western Port) v Shire of Hasting (1977) 16 ALR 363 at 376: “For a term to be implied, the following conditions (which may overlap) must be satisfied: (1) It must be reasonable and equitable. (2) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it. (3) It must be so obvious that “it goes without saying”. (4) It must be capable of clear expression. (5) It must not contradict any express term of the contract.” [26] In the light of my conclusions in relation to the proper construction of the contract, clearly the plaintiff could not satisfy conditions 1, 2 and 3 of the test enunciated by the High Court. [27] It follows that the plaintiff’s claim against the defendant must fail. The plaintiff will pay the defendant’s costs of and incidental to the action to be assessed on the standard basis or as agreed. -- 19 of 20 -- 20 [28] In the event that I am wrong in my conclusion I assess the plaintiff’s claim in the sum of $180,000 plus interest at the agreed rate of 10.25% from 13 January 1994 to 7 December 2000 (the date of trial) at $127,305.00, and the daily rate thereafter of $50.55. Because of section 63(3)(c), the total award, despite being well in excess of the monetary limit of the District Court Act, would nevertheless be within the jurisdiction of this court. [29] Since the hearing of this matter the Court of Appeal has delivered judgment in GPS Power P/L and Ors v Gardiner Willis and Assoc P/L [2000] QCA 495. There is nothing in the judgment of the members of that Court to alter the conclusions I have reached. -- 20 of 20 --