Atlen Pty Limited v Building Insurers' Guarantee Corporation & Anor [2004] NSWSC 195

Atlen Pty Limited v Building Insurers' Guarantee Corporation & Anor [2004] NSWSC 195

The plaintiff was not a person for whom Horvat carried out residential building work nor a successor in title, and as a head contractor or possible developer, was excluded from coverage and indemnity under the subcontractor's insurance policy and s 103I of the Act. Accordingly, the plaintiff cannot claim indemnity either under the FAI policy or from the State.

Parties
Plaintiff: Atlen Pty Limited; 1st Defendant: Building Insurers' Guarantee Corporation; 2nd Defendant: The State of New South Wales
Jurisdiction
Australia
Judgment Date
24 March 2004
Procedural Posture
Civil / Final Judgment
Outcome
Judgment for the defendants
Legal Topics
Home Building Act Indemnity, Beneficiaries Under Insurance Policy, Developer Exclusion, Subcontractor Insurance Coverage
Insurance Law Construction Law Equity Home Building Act Indemnity Beneficiaries Under Insurance Policy Developer Exclusion Subcontractor Insurance Coverage

Case Brief

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Parties

Atlen Pty Limited

Plaintiff

Building Insurers' Guarantee Corporation

1st Defendant

The State of New South Wales

2nd Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Is the plaintiff entitled to be indemnified under the FAI insurance policy for losses caused by the insolvency of Horvat as subcontractor?
  2. 2 Does the Home Building Act 1989 entitle a head contractor to indemnity under a subcontractor's insurance policy if the head contractor is not a person for whom the work is 'to be done'?
  3. 3 Is the plaintiff excluded from indemnity as a developer or builder under s 103I of the Home Building Act 1989?

Ratio Decidendi

The plaintiff was not a person for whom Horvat carried out residential building work nor a successor in title, and as a head contractor or possible developer, was excluded from coverage and indemnity under the subcontractor's insurance policy and s 103I of the Act. Accordingly, the plaintiff cannot claim indemnity either under the FAI policy or from the State.

Court Disposition

Judgment for the defendants

Orders

  • Plaintiff to pay the defendants' costs