Owners of Strata Plan 50422 v Fair Trading Administration Corporation [2000] NSWFTT 13

Owners of Strata Plan 50422 v Fair Trading Administration Corporation [2000] NSWFTT 13

Section 54(1) of the Insurance Contracts Act 1984 (Commonwealth) was not applicable to FTAC because the Scheme did not involve a contract or proposed contract of insurance for the purposes of section 5(1) of the Insurance (Application of Laws) Act 1986, but instead provided a statutory entitlement to indemnity. In addition, the Scheme was not State insurance for the purposes of section 5(1) of the 1986 Act, being social in nature and not general insurance supplied competitively in the market place. The Applicant therefore could not rely on section 54(1) to prevent FTAC refusing the claim for failure to notify within the time specified under section 7(1)(c) of the Scheme.

Jurisdiction
Australia
Judgment Date
18 September 2000
Procedural Posture
Appeal to the Fair Trading Tribunal From Rejection of an Insurance Claim Under the Building Services Corporation Comprehensive Insurance Scheme / Decision on Preliminary Jurisdictional Issue
Outcome
Preliminary issue determined against the Applicant; section 54(1) of the Insurance Contracts Act 1984 (Commonwealth) held not applicable to the Respondent.
Legal Topics
['application of Insurance Contracts Act 1984 (commonwealth) Section 54(1)' 'state Insurance' 'statutory Entitlement to Indemnity' 'out of Time Insurance Claim' 'building Services Corporation Comprehensive Insurance Scheme']
['insurance Law' 'home Building' 'administrative Law'] ['application of Insurance Contracts Act 1984 (commonwealth) Section 54(1)' 'state Insurance' 'statutory Entitlement to Indemnity' 'out of Time Insurance Claim' 'building Services Corporation Comprehensive Insurance Scheme']

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Procedural Posture

Appeal to the Fair Trading Tribunal From Rejection of an Insurance Claim Under the Building Services Corporation Comprehensive Insurance Scheme / Decision on Preliminary Jurisdictional Issue

Legal Issues

  1. 1 ['Whether section 54(1) of the Insurance Contracts Act 1984 (Commonwealth) is applicable to the Respondent.' 'Whether the Scheme involves a contract or proposed contract of insurance for the purposes of section 5(1) of the Insurance (Application of Laws) Act 1986.' 'Whether the Scheme is State insurance for the purposes of section 5(1) of the Insurance (Application of Laws) Act 1986.']

Ratio Decidendi

Section 54(1) of the Insurance Contracts Act 1984 (Commonwealth) was not applicable to FTAC because the Scheme did not involve a contract or proposed contract of insurance for the purposes of section 5(1) of the Insurance (Application of Laws) Act 1986, but instead provided a statutory entitlement to indemnity. In addition, the Scheme was not State insurance for the purposes of section 5(1) of the 1986 Act, being social in nature and not general insurance supplied competitively in the market place. The Applicant therefore could not rely on section 54(1) to prevent FTAC refusing the claim for failure to notify within the time specified under section 7(1)(c) of the Scheme.

Court Disposition

Preliminary issue determined against the Applicant; section 54(1) of the Insurance Contracts Act 1984 (Commonwealth) held not applicable to the Respondent.

Orders

  • ['Section 54(1) of the Insurance Contracts Act 1984 (Commonwealth) is not applicable to the Respondent.' 'The matter is to be relisted for a further Case Conference to allow the Tribunal to make further directions as to the progress of the Application.']