Dieter v NSW Self Insurance Corporation [2022] NSWCATAP 52

Dieter v NSW Self Insurance Corporation [2022] NSWCATAP 52

The appellant was a developer for the purposes of s 3A of the Home Building Act 1989 (NSW) because the residential building work concerned four proposed dwellings owned by him, so the policy's developer exclusion applied and the Tribunal did not misinterpret or misapply the Act. The respondent did not breach any obligation of utmost good faith because the policy was obtained through the builder's broker in the usual way, the multi-dwelling application was appropriate, the developer exclusion was permitted by the statutory scheme, there was no direct representation by the respondent to the appellant that he was covered notwithstanding the exclusion, and there was no unfair, unreasonable or...

Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Building Claim Decision Concerning Rejection of a Home Building Compensation Insurance Policy Claim / Appeal Panel Decision on Appeal and Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed; appellant ordered to pay respondent's costs of the appeal on the ordinary basis, as agreed or assessed.
Legal Topics
['home Building Compensation Insurance' 'developer Exclusion' 'definition of Developer Under the Home Building Act 1989 (nsw)' 'utmost Good Faith in Insurance' 'internal Appeals' 'leave to Appeal' 'special Circumstances for Costs']
['administrative Law' 'building and Construction' 'insurance' 'costs'] ['home Building Compensation Insurance' 'developer Exclusion' 'definition of Developer Under the Home Building Act 1989 (nsw)' 'utmost Good Faith in Insurance' 'internal Appeals' 'leave to Appeal' 'special Circumstances for Costs']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Building Claim Decision Concerning Rejection of a Home Building Compensation Insurance Policy Claim / Appeal Panel Decision on Appeal and Leave to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in concluding that the HBCI policy did not cover the appellant because he was a developer as defined in the policy and the Home Building Act 1989 (NSW)' 'Whether the Tribunal erred in concluding that the respondent did not act in bad faith or breach an obligation of utmost good faith' 'Whether the appellant established a basis for leave to appeal' 'Whether special circumstances warranted a costs order against the appellant']

Ratio Decidendi

The appellant was a developer for the purposes of s 3A of the Home Building Act 1989 (NSW) because the residential building work concerned four proposed dwellings owned by him, so the policy's developer exclusion applied and the Tribunal did not misinterpret or misapply the Act. The respondent did not breach any obligation of utmost good faith because the policy was obtained through the builder's broker in the usual way, the multi-dwelling application was appropriate, the developer exclusion was permitted by the statutory scheme, there was no direct representation by the respondent to the appellant that he was covered notwithstanding the exclusion, and there was no unfair, unreasonable or...

Court Disposition

Leave to appeal refused; appeal dismissed; appellant ordered to pay respondent's costs of the appeal on the ordinary basis, as agreed or assessed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal on the ordinary basis, as agreed or assessed."]