Insurance Policy – valid election to repair or not

QBE Insurance (Australia) Limited v Cape York Airlines Pty Ltd [2011] QCA 60

I refer to my earlier posting. The Court of Appeal decision found the primary judge did not err in finding that that there was not a valid election to repair the aircraft pursuant to the policy of insurance.

Whilst the election depended on the facts, the general principles for election are instructive:

[14] Both parties accepted that the following statement of principle by Stephen J in Sargent v ASL Developments Ltd[1] applied:

“The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other; thus for a lessor to continue to receive rent under a lease will be consistent only with his rights as lessor and inconsistent with the exercise of a right to determine the lease … However, less unequivocal conduct, only providing some evidence of an election, may suffice if coupled with actual knowledge of the right of election … There need be no expressed intention to elect, nor will an express disclaimer of such an intention be of any avail in preserving one right if in fact there be an exercise of another inconsistent right … For an election there need be no actual, subjective intention to elect … an election is the effect which the law attributes to conduct justifiable only if such an election had been made …”.

[15] Counsel for the appellant also placed reliance on the following observations of Lord Clyde in Mannai Ltd v Eagle Star Assurance Co Ltd[2] concerning what is required for an unequivocal communication of an election:

“The standard of reference is that of the reasonable man exercising his common sense in the context and in the circumstances of the particular case. It is not an absolute clarity or an absolute absence of any possible ambiguity which is desiderated. To demand a perfect precision in matters which are not within the formal requirements of the relevant power would in my view impose an unduly high standard in the framing of notices such as those in issue here.”

[23] In Immer (No. 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW)[4] it was said in the joint judgment:

“A party can only be held to have elected “if he has so communicated his election to the other party in clear or unequivocal terms”.”

[24] Brennan J was of the opinion that an election must be unqualified as well as unequivocal.[5] That an election to be effective must be unqualified, as I consider it must be, derives support from the following passage from the reasons of Smith J in Ballas v Theophilos:[6]

“It is clear, however, that, unless otherwise provided no particular form of words is necessary to constitute such an election: see Nicholson v. Smith (1882), 22 Ch. D. 640, at p. 659. A statement that the option holder wishes, or desires, or intends, or agrees, to purchase under the option, or to exercise the option, will ordinarily be sufficient, if it be unqualified: compare the forms of expression employed in Nicholson v. Smith … But this is only so because such a statement sufficiently conveys, by implication, the meaning that the option holder has made an unqualified election to be thenceforth entitled to the rights, and bound by the obligations, of a purchaser upon the terms set out in the option agreement. Accordingly, if the statement includes anything which negatives such an implication it will not be effective to exercise the option.” [Citations omitted].

Brisbane Barrister – David Cormack

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