HIH v Jones [2000] NSWSC 359

HIH v Jones [2000] NSWSC 359

The insurance obtained by Acosta was a contract of insurance required by s92 for the benefit of the Joneses and their successors in title. Because the Joneses were the persons on whose behalf the residential building work was being done, s99 required that they be insured against the stated risks. Their status as developers within s3A did not relieve Acosta of its s92 obligation or substitute s96 and s101 for s92 and s99. Clause 5.8, insofar as it purported to exclude the Joneses from cover, restricted or removed rights conferred by Pt 6 and was void under s103D. Clause 42(2)(a) of the Regulation did not alter that result.

Jurisdiction
Australia
Judgment Date
10 May 2000
Procedural Posture
Appeal From a Decision of the Fair Trading Tribunal Concerning Rejection of a Home Building Insurance Claim / Appeal Dismissed
Outcome
Appeal dismissed.
Legal Topics
['home Building Act Insurance Requirements' 'residential Building Work' 'developers as Beneficiaries' 'validity of Exclusion Clause' 'fair Trading Tribunal Appeal']
['insurance Law' 'building and Construction Law' 'statutory Interpretation'] ['home Building Act Insurance Requirements' 'residential Building Work' 'developers as Beneficiaries' 'validity of Exclusion Clause' 'fair Trading Tribunal Appeal']

Case Brief

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Procedural Posture

Appeal From a Decision of the Fair Trading Tribunal Concerning Rejection of a Home Building Insurance Claim / Appeal Dismissed

Legal Issues

  1. 1 ['Whether s92 and s99 of the Home Building Act 1989 applied to a contract of insurance obtained by a contractor for residential building work where the owners were developers within s3A.' 'Whether cl 5.8 of the Contract of Insurance excluding claims by a contractor or developer was void under s103D of the Home Building Act 1989.' 'Whether s96 and s101, rather than s92 and s99, governed insurance where residential building work was done on behalf of a developer.' 'Whether cl 42(2)(a) of the Home Building Regulation 1997 meant the Joneses were not required to be beneficiaries under the insurance contract.' 'Whether construction of a building containing multiple dwellings was residential building work.']

Ratio Decidendi

The insurance obtained by Acosta was a contract of insurance required by s92 for the benefit of the Joneses and their successors in title. Because the Joneses were the persons on whose behalf the residential building work was being done, s99 required that they be insured against the stated risks. Their status as developers within s3A did not relieve Acosta of its s92 obligation or substitute s96 and s101 for s92 and s99. Clause 5.8, insofar as it purported to exclude the Joneses from cover, restricted or removed rights conferred by Pt 6 and was void under s103D. Clause 42(2)(a) of the Regulation did not alter that result.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the respondents' costs of the appeal."]