FAI General Insurance Company Limited v Brookman & Anor [2000] NSWSC 56

New South Wales Supreme Court

CITATION : FAI General Insurance Company Limited v Brookman & Anor [2000] NSWSC 56 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 30091/99 HEARING DATE(S) : 17 February 2000 JUDGMENT DATE : 22 February 2000

FAI General Insurance Company Limited (Plt) PARTIES : Judith Brookman (1D) Fair Trading Tribunal (2D) JUDGMENT OF : Newman J

LOWER COURT Fair Trading Tribunal JURISDICTION : LOWER COURT Bu1999/1504 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : N C Hutley SC/S D Kalfas (Plt) R A Cavanagh (1D) SOLICITORS : Phillips Fox (Plt) Holman Webb (1D) CATCHWORDS : Appeals - questions of law or fact LEGISLATION CITED : Fair Trading Tribunal Act 1998 Home Building Act 1989 CASES CITED : Scottish Amicable Life Assurance Society v Reg Austin Insurance Pty Ltd & Ors (1985) 9 ACLR 909 Clark Equipment Credit of Australia v Kiyose Holdings Pty Limited (1989) 31 NSWLR 160 DECISION : Judgment for defendants plus costs.

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

NEWMAN J

TUESDAY, 22 FEBRUARY 2000

30091/99 - FAI GENERAL INSURANCE COMPANY LIMITED v BROOKMAN & ANOR

JUDGMENT

1 HIS HONOUR: This is an appeal from the Fair Trading Tribunal (hereinafter referred to as the Tribunal). The proceedings before the Tribunal involved a dispute arising out of a building contract between a home owner (who is the first defendant here) and the alleged insurer of a builder who had carried out work at the first defendant's home. 2 The issue before the Tribunal was whether the plaintiff here insured the builder. The resolution of that issue involved a determination as to who were the parties to the building contract. 3 The contract in question was a standard form contract produced by the Department of Fair Trading. Pursuant to s 7 of the Home Building Act 1989 the contract had to be in writing, dated and signed on behalf of the parties to it and by s 2 must contain the following:- "(2) A contract must contain: (a) the names of the parties, including the name of the holder of the licence shown on the licence, and (b) the number of the licence, and (c) a sufficient description of the work to which the contract relates, and (d) any plans and specifications for the work, and (e) the contract price if known, and (f) any statutory warranties applicable to the work." 4 Section 92 of that Act requires contract work involved to be insured. 5 Section 94 of that Act prohibits a person from obtaining damages if they enter into a contract in contravention of s 92. 6 The background to the dispute was that the first defendant on 9 October 1998 executed a standard form contract for work on her home at 29 Winchester Road, Clovelly. Gary Cohen, who was a licensed builder, having a licence contractor number 11288 also had control of a company known as Action United Pty Ltd, which was a company engaged in the building industry and holding a licence number 92491C. 7 The first page of the contract describes the parties as follows: "Owner Name(s) JUDY BROOKMAN Address 29 Winchester Rd Clovelly Postcode 2031 Address where work is to be done (site) 29 Winchester Road Clovelly Postcode 2031