The Owners - Strata Plan No 68372 v Allianz Australia Insurance Limited [2014] NSWSC 1807

The Owners - Strata Plan No 68372 v Allianz Australia Insurance Limited [2014] NSWSC 1807

GEO was a 'developer' under s 3A Home Building Act and liable for breaches of statutory warranties. Claims against it under s 18C are not apportionable under Pt 4 Civil Liability Act; GEO has no indemnity from Allianz for its s 18C liability as the policy only covers loss/damage to the Building Owner, not GEO's liabilities. Referee's finding on method of rectification for laundry wastes was in error: contractual compliance requires mechanical trap priming devices, being not unreasonable. Referee correctly found GEO liable for underpinning defects as builder's strict warranties were breached regardless of design responsibility. Insurance exclusions for defective design did not apply as...

Parties
Plaintiff: The Owners - Strata Plan No 68372; First Defendant: Allianz Australia Insurance Limited ACN 000 122 850; Second Defendant: Vero Insurance Limited ACN 005 297 807; Third Defendant: GEO Developments Pty Limited ACN 010 621 226
Jurisdiction
Australia
Judgment Date
18 December 2014
Procedural Posture
Civil / Post Referee's Report, Motion for Adoption/variation
Outcome
Referee's report adopted except as to the method of rectification for laundry floor wastes and as otherwise amended.
Legal Topics
Adoption of Referee's Report, Statutory Warranties, Apportionable Claims, Insurance Indemnity, Assessment of Rectification Costs, Mitigation of Loss, Contractual Compliance, Developer Liability
Building and Construction Adoption of Referee's Report Statutory Warranties Apportionable Claims Insurance Indemnity Assessment of Rectification Costs Mitigation of Loss Contractual Compliance +1 more

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Parties

The Owners - Strata Plan No 68372

Plaintiff

Allianz Australia Insurance Limited ACN 000 122 850

First Defendant

Vero Insurance Limited ACN 005 297 807

Second Defendant

GEO Developments Pty Limited ACN 010 621 226

Third Defendant

Procedural Posture

Civil / Post Referee's Report, Motion for Adoption/variation

Legal Issues

  1. 1 Whether the third defendant GEO was a 'developer' under the Home Building Act 1989 (NSW) s 3A and thus liable for breach of statutory warranties
  2. 2 Whether the plaintiff's claim under s 18C is an apportionable claim under the Civil Liability Act 2002 (NSW) Pt 4
  3. 3 Whether GEO is entitled to indemnity from Allianz under insurance policy issued

Ratio Decidendi

GEO was a 'developer' under s 3A Home Building Act and liable for breaches of statutory warranties. Claims against it under s 18C are not apportionable under Pt 4 Civil Liability Act; GEO has no indemnity from Allianz for its s 18C liability as the policy only covers loss/damage to the Building Owner, not GEO's liabilities. Referee's finding on method of rectification for laundry wastes was in error: contractual compliance requires mechanical trap priming devices, being not unreasonable. Referee correctly found GEO liable for underpinning defects as builder's strict warranties were breached regardless of design responsibility. Insurance exclusions for defective design did not apply as...

Court Disposition

Referee's report adopted except as to the method of rectification for laundry floor wastes and as otherwise amended.

Orders

  • Referee's report adopted except for para 376 (method of rectification for laundry floor waste); mechanical trap priming devices to be installed as rectification.
  • Para 537 of referee's report amended to substitute 'GEO' for 'Rubikcon' in last sentence.