Allianz Australia v Baker & 2 Ors [2005] NSWSC 720

Allianz Australia v Baker & 2 Ors [2005] NSWSC 720

The Tribunal erred in making two separate awards against the insurer and builder based on the same breach of statutory warranty. Under the legislative scheme, the insurer is only liable to indemnify for a single quantified loss arising from the builder's breach of statutory warranty, as established before the Tribunal. Thus, the insurer is not liable for the additional sum beyond the proven indemnified loss.

Jurisdiction
Australia
Judgment Date
22 July 2005
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld; Tribunal's order for single indemnified sum affirmed; Additional award set aside; Costs ordered against defendants, subject to eligibility for Suitors Fund certificate.
Legal Topics
['statutory Warranty' 'home Building Act' 'indemnity' 'claims Under Insurance' 'appeal From Tribunal Decision']
['insurance Law' 'building and Construction Law'] ['statutory Warranty' 'home Building Act' 'indemnity' 'claims Under Insurance' 'appeal From Tribunal Decision']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether owners' cause of action against the insurer is distinct from their cause of action against the builder" 'Whether the Tribunal erred in law in its interpretation of the insurance indemnity']

Ratio Decidendi

The Tribunal erred in making two separate awards against the insurer and builder based on the same breach of statutory warranty. Under the legislative scheme, the insurer is only liable to indemnify for a single quantified loss arising from the builder's breach of statutory warranty, as established before the Tribunal. Thus, the insurer is not liable for the additional sum beyond the proven indemnified loss.

Court Disposition

Appeal upheld; Tribunal's order for single indemnified sum affirmed; Additional award set aside; Costs ordered against defendants, subject to eligibility for Suitors Fund certificate.

Orders

  • ['The appeal is upheld.' "The Tribunal Member's decision that Sampson Developments Pty Ltd and Allianz Australia Insurance Limited jointly and severally pay Kevin Baker and Robert Minch the sum of $106,787.00 is affirmed." "The Tribunal Member's decision that Allianz Australia Insurance Limited pay Kevin Baker and...