Evolution or Revolution? Conflict in the High Court

Abstract

Recently in Trident General Insurance Co. Limited v. McNiece Bros. Pty Limited1 the High Court was faced with the question whether a third party beneficiary under a policy of insurance was able to sue on the policy. It was argued that the rules that only a party to a contract may sue on it and that consideration must move from the promisee, were so fundamental and so embedded in our law of contract, that they should not be overturned by judicial decision to allow recovery by the named beneficiary on the policy. The Court was asked to consider a rule of law, jus quaesitum tertio, thought to have been firmly entrenched since 1861. Focus was thrown on the question as to how far the High Court could overthrow long established legal principles.