Benson v NSW Self Insurance Corporation [2023] NSWCATCD 103

Benson v NSW Self Insurance Corporation [2023] NSWCATCD 103

The overpayment did not arise from non-completion of the work or breach of a statutory warranty by the builder as required by the policy and is not indemnifiable as a progress payment. The loss was not due to an indemnifiable event (insolvency, death, disappearance) but resulted from payments made by mistake or beyond contract price. Rental bond for alternative accommodation is not a cost incurred but an amount held on trust, and not indemnifiable under the policy. No claim was deemed accepted as respondent’s correspondence constituted a decision for policy purposes.

Jurisdiction
Australia
Judgment Date
03 August 2023
Procedural Posture
Building Claim (insurance) / Final Merits Hearing Reasons for Decision
Outcome
Application dismissed
Legal Topics
['home Building Compensation' 'progress Payments' 'alternative Accommodation Costs' 'statutory Warranties' 'interpretation of Insurance Contracts']
['building and Construction' 'insurance Law'] ['home Building Compensation' 'progress Payments' 'alternative Accommodation Costs' 'statutory Warranties' 'interpretation of Insurance Contracts']

Case Brief

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Procedural Posture

Building Claim (insurance) / Final Merits Hearing Reasons for Decision

Legal Issues

  1. 1 ['Whether the applicants are entitled to indemnity for overpayment of $35,024.30 under the Home Building compensation insurance policy' 'Whether the rental bond of $3,400.00 for alternative accommodation is indemnifiable under the policy' 'Whether the overpayment is a progress payment within the meaning of the policy and Home Building Act 1989 (NSW)' 'Whether a claim was deemed accepted under clause 5.3(c) of the policy']

Ratio Decidendi

The overpayment did not arise from non-completion of the work or breach of a statutory warranty by the builder as required by the policy and is not indemnifiable as a progress payment. The loss was not due to an indemnifiable event (insolvency, death, disappearance) but resulted from payments made by mistake or beyond contract price. Rental bond for alternative accommodation is not a cost incurred but an amount held on trust, and not indemnifiable under the policy. No claim was deemed accepted as respondent’s correspondence constituted a decision for policy purposes.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.' 'If any party wishes to seek an order other than each party is to pay its own costs, it is to file and serve submissions and any evidence in support of its application for costs within 14 days of the date of these orders; any submissions or evidence in response are to be filed and...