Building Insurers’ Guarantee Corporation v The Owners – Strata Plan No. 57504 [2010] NSWCA 23

Building Insurers’ Guarantee Corporation v The Owners – Strata Plan No. 57504 [2010] NSWCA 23

The respondent owners' corporation, as a successor in title, was entitled to receive the benefit of the statutory implied warranties and insurance, and damages for breach equal to what the predecessor could recover, including the reasonable cost of demolition and reinstatement to produce conformity with plans and specifications. Payment prior to commencement of the Amending Act was made under the indemnity and excepted from retrospective application of s 103BA. The appeal therefore failed; demolition and reinstatement was a reasonable measure for damages.

Jurisdiction
Australia
Judgment Date
15 March 2010
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed with costs
Legal Topics
['building Contract Breach' 'statutory Implied Warranties' 'home Building Insurance' 'measure of Damages' 'succession in Title' 'mitigation']
['building and Construction Law' 'insurance Law'] ['building Contract Breach' 'statutory Implied Warranties' 'home Building Insurance' 'measure of Damages' 'succession in Title' 'mitigation']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether demolition and reinstatement to produce compliance with contract is a reasonable measure for damages' 'Whether the Home Building Amendment (Insurance) Act 2009 applies retrospectively to payment made under the indemnity' 'Whether a successor in title is entitled to the benefit of statutory implied warranties and insurance and the same damages as predecessor' 'Whether breach by builder for work not in conformity with plans and specifications has occurred' 'Whether onus is on builder to prove mitigation unreasonable']

Ratio Decidendi

The respondent owners' corporation, as a successor in title, was entitled to receive the benefit of the statutory implied warranties and insurance, and damages for breach equal to what the predecessor could recover, including the reasonable cost of demolition and reinstatement to produce conformity with plans and specifications. Payment prior to commencement of the Amending Act was made under the indemnity and excepted from retrospective application of s 103BA. The appeal therefore failed; demolition and reinstatement was a reasonable measure for damages.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']