McCallum Developments v The Owners Corporation SP53908 [2002] NSWSC 1103

McCallum Developments v The Owners Corporation SP53908 [2002] NSWSC 1103

The insurance scheme requires the second defendant to consider both when the beneficiary first became aware of defects and whether notice was given within six months or whether an extension is warranted. The evidence did not establish that the claim was necessarily out of time or that no proper basis for extension existed. No useful purpose would be achieved by making the declarations sought. The summons is dismissed.

Jurisdiction
Australia
Judgment Date
21 November 2002
Procedural Posture
Amended Summons Seeking Declaratory Relief and Restraining Order / Judgment After Hearing
Outcome
Summons dismissed; costs reserved.
Legal Topics
['declaratory Relief' 'standing' 'statutory Insurance Scheme' 'time Limits for Claims' 'extension of Time' 'defective Building Work' 'recovery Proceedings']
['administrative Law' 'insurance Law' 'building Law'] ['declaratory Relief' 'standing' 'statutory Insurance Scheme' 'time Limits for Claims' 'extension of Time' 'defective Building Work' 'recovery Proceedings']

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Procedural Posture

Amended Summons Seeking Declaratory Relief and Restraining Order / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the first defendant's insurance claim was out of time under the statutory insurance scheme" 'Whether the second defendant properly considered time requirements under the scheme' 'Whether the plaintiff had standing to seek declarations' 'Whether a basis existed to make the declarations sought']

Ratio Decidendi

The insurance scheme requires the second defendant to consider both when the beneficiary first became aware of defects and whether notice was given within six months or whether an extension is warranted. The evidence did not establish that the claim was necessarily out of time or that no proper basis for extension existed. No useful purpose would be achieved by making the declarations sought. The summons is dismissed.

Court Disposition

Summons dismissed; costs reserved.

Orders

  • ['Summons dismissed.' 'Costs reserved; matter listed for hearing submissions as to costs.']