Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Comparing the effect of inadequate documentation to the cost management and tendering processes in managing contractor and fixed lump sum contracts in Australia

Purpose of this paper This research aims to examine the effects of inadequate documentation to the cost management & tendering processes in Managing Contractor Contracts using Fixed Lump Sum as a benchmark. Design/methodology/approach A questionnaire survey was conducted with industry practitioners to solicit their views on documentation quality issues associated with the construction industry. This is followed by a series of semi-structured interviews with a purpose of validating survey findings. Findings and value The results showed that documentation quality remains a significant issue, contributing to the industries inefficiency and poor reputation. The level of satisfaction for individual attributes of documentation quality varies. Attributes that do appear to be affected by the choice of procurement method include coordination, build ability, efficiency, completeness and delivery time. Similarly the use and effectiveness of risk mitigation techniques appears to vary between the methods, based on a number of factors such as documentation completeness, early involvement, fast tracking etc. Originality/value of paper This research fills the gap of existing body of knowledge in terms of limited studies on the choice of a project procurement system has an influence on the documentation quality and the level of impact. Conclusions Ultimately research concludes that the entire project team including the client and designers should carefully consider the individual projects requirements and compare those to the trade-offs associated with documentation quality and the procurement method. While documentation quality is definitely an issue to be improved upon, by identifying the projects performance requirements a procurement method can be chosen to maximise the likelihood that those requirements will be met. This allows the aspects of documentation quality considered most important to the individual project to be managed appropriately.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

Evaluation of Charges for Power Transmission and Losses in Bilateral Power Contracts

The paper presents a method for transmission loss charge allocation in deregulated power systems based on Relative Electrical Distance (RED) concept. Based on RED between the generator and load nodes and the predefined bilateral power contracts, charge evaluation is carried out. Generally through some power exchange mechanism a set of bilateral contracts are determined that facilitate bilateral agreements between the generation and distribution entities. In this paper the possible charges incurred in meeting loads like generation charge, transmission charge and charge due to losses are evaluated. Case studies have been carried out on a few practical equivalent systems. Due to space limitation results for a sample 5 bus system are presented considering ideal load/generation power contracts and deviated load/generation power contracts. Extensive numerical testing indicates that the proposed allocation scheme produces loss allocations that are appropriate and that behave in a physically reasonable manner.

A lifespan perspective on psychological contracts and their relations with organizational commitment

The current study investigated the influence of age-related constructs on the psychological contract and its relationships with continuance and normative commitment. It was proposed that as people age, their future time perspective (FTP) decreases. Consequently, it was expected that contract fulfilment would be positively related to continuance commitment for workers with short FTP, while it would be positively related to normative commitment for workers with long FTP. Conversely, it was argued that, with age, workers’ perceived work-related expertise increases, resulting in stronger reactions to obligation fulfilment on normative commitment. A study among 334 employees showed that FTP and work-related expertise indeed moderated the relationships between contract fulfilment and organizational commitment. The results showed that the influence of age on the relations between contract fulfilment with outcomes is dependent upon FTP and occupational expertise. The study shows the value of a lifespan perspective on psychological contracts and their relations with organizational commitment.

Land Contracts in Queensland [4th Edition]

"The authors analyse the substance of the transaction through the medium of the latest standard REIQ Residential, Commercial and Community Titles contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering contract formation including the role of the real estate agent, the disclosure regime for sellers and agents, subject matter, the inclusion of special conditions, risk, completion both through the paper based medium and electronic conveyancing and stamp duty and GST implications."--Publisher website

The effect of firm-level contracts on the structure of wages: evidence from matched employer-employee data

Revised: 2006-11

Wage differentials between Permanent and Temporal Contracts: Further Evidence

The main objective of this paper is to estimate wage differentials between permanent and temporal workers for different qualification levels and decompose such differentials to see which factors contribute more to explain them. The data we use is the "Encuesta de Estructura Salarial", a survey carried out in 1995 in all countries of the European Union, which contains very detailed information on wages and other characteristics for about 180.000 workers. The empirical results indicate that (a) the wage gap between permanent and temporal workers increases with qualification and it is smaller for females than for males, (b) when decomposing average wage differentials for each qualification level, we observe that the vast majority of such differential is explainedby differences in characteristics, and in particular by differences in tenure and occupation. With respect to differences in returns, our results indicate that the returns to tenure are higher for temporal workres relative to permanent workers for both males and females and for every qualification level. Returns to occupation are higher for permanent than for temporal workers, and the differenceis particularly high for females.

Career Planning in Spain: Do temporary contracts delay marriage and motherhood?

The aim of this paper is to find an empirical connection between the impressive increase in the use of temporary contracts in Spain and the observed increase in age at marriage and maternity. Using a pool of the six available waves of individual information from the European Household Panel for Spain, we find that holding temporary contracts rather than permanent ones delays marriage for males, but not for females. Concerning maternity, the labor market situation of both members of the household affects entry into motherhood. In particular, if woman has a temporary contract rather than a permanent one, motherhoods is delayed independently of the husband's contract. As expected, postponement of maternity is not found for non-working women. These results give strong support to the career planning, motive to delay maternity in Spain, given that an unstable labor market situation of female workers is found to be the main deterrent to entry into motherhood.