Jones & Anor v Building Insurers' Guarantee Corporation [2005] NSWCA 7

New South Wales Court of Appeal

CITATION: Jones & Anor v Building Insurers' Guarantee Corporation [2005] NSWCA 7

HEARING DATE(S): 1 February 2005

JUDGMENT DATE: 15 February 2005

JUDGMENT OF: Giles JA at 1; Ipp JA at 50; Brownie AJA at 51

DECISION: Appeal dismissed with costs.

CATCHWORDS: Home Building Act 1989 - scheme of compulsory insurance - amendments providing for State to provide indemnity to persons entitled to claim against insolvent insurer - exception for "a developer to which the policy relates" - claimant had previously been held entitled to claim against insurer notwithstanding a policy exclusion of a claim by developer - whether claimant thereby characterised otherwise than as developer and not within exception in legislation. D

Steven Jones and Roslyn Jones - Appellants PARTIES: Building Insurers' Gurantee Corporation - Respondent

FILE NUMBER(S): CA 40430/04

G Sirtes - Appellants COUNSEL: T Lynch - Respondent

Pateman Legal - Appellants SOLICITORS: McLachlan Chilton - Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 3067/03

LOWER COURT JUDICIAL OFFICER: Gzell J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40430/04 ED 3067/03

GILES JA IPP JA BROWNIE AJA

Tuesday 15 February 2005 JONES & ANOR v BUILDING INSURERS' GUARANTEE CORPORATION Judgment 1 GILES JA: The Home Building Act 1989 ("the Act") required insurance in relation to residential building work. Following the collapse of HIH Casualty & General Insurance Ltd ("HIH"), amendments were made to the Act obliging the State to indemnify a person covered by an insolvent insurer's policy. The indemnity was qualified, and the question in this appeal from Gzell J is whether a qualification denying indemnity to "a developer to which the policy relates" defeats the appellants' claim upon the respondent.