Atlen P/L v Building Insurers' Guarantee Corp. [2005] NSWCA 105

New South Wales Court of Appeal

Atlen P/L v Building Insurers' Guarantee Corp. [2005] NSWCA 105 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 February 2005

JUDGMENT DATE: 7 April 2005

JUDGMENT OF: Mason P at 1; Tobias JA at 26; Campbell AJA at 27

DECISION: Appeal dismissed with costs.

CATCHWORDS: CONTRACT FOR INSURANCE - compulsory insurance in relation to residential building under the Home Building Act 1989 - Pt 6A (insolvent insurer) - head contractor's right to indemnity from respondent (Building Insurer's Guarantee Corporation) under Pt 6A after subcontractor abandoned performance of subcontract and subcontractor's insurer became insolvent - whether a subcontractor required under Part 6 to enter into contract of insurance for benefit of head contractor - whether respondent bound to stand behind insolvent subcontractor's failed insurer - statutory interpretation

Home Building Act 1989 LEGISLATION CITED: Corporations Law Home Building Regulation 1997

Atlen Pty Ltd v Building Insurers' Guarantee Corporation & Anor [2004] NSWSC 195 CASES CITED: Festa Holdings Pty Ltd & Anor v Additon & Ors [2004] NSWCA 228

Atlen Pty Limited PARTIES: Building Insurers' Guarantee Corporation

FILE NUMBER(S): CA 40299/04

A: S Epstein SC COUNSEL: R: T Lynch

A: Gadens, Sydney SOLICITORS: R: McLachlan Chilton, Sydney

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 4306/02

LOWER COURT JUDICIAL OFFICER: Brownie A-J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40299/2004 ED 4306/2002