Hristoforidis v Fair Trading Administraiton Corporation [2007] NSWSC 1243

New South Wales Supreme Court

CITATION : Hristoforidis v Fair Trading Administraiton Corporation [2007] NSWSC 1243 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 23 August 2007

JUDGMENT DATE : 26 October 2007

JUDGMENT OF : Latham J

DECISION : A declaration that the decisions made by the defendant under clause 5(1)(d) of the BSC Comprehensive Insurance Scheme in Form 4 of Schedule 1 to the Building Services Corporation Regulation 1990 (NSW) to grant indemnity to the Proprietors of Strata Plan 39162 in response to their insurance claim dated 25 October 1996 and subsequent extensions thereof ("the indemnity"), were null and void and of no effect; A declaration that the defendant has no right or entitlement to bring recovery proceedings for any amount paid pursuant to the indemnity against the plaintiff under section 98 of the Building Services Corporation Act 1989.; An order restraining the defendant from prosecuting District Court proceedings No. 1311 of 2005; An order that the defendant be permanently restrained from bringing any recovery proceedings under section 98 of the Building Services Corporation Act 1989 against the plaintiff in relation to the indemnity or any amount paid pursuant to it; I award costs in favour of the plaintiff.

CATCHWORDS : ADMINISTRATIVE LAW - whether exercise of power by defendant, declining claim under statutory insurance scheme, was spent - re-consideration of claim by defendant ultra vires - whether initial decision affected by jurisdictional error.

Building Services Corporation Act 1989 LEGISLATION CITED : Interpretation Act 1987 Building Services Corporation Regulation 1990 (NSW)