NSW Caselaw
New South Wales Supreme Court
CITATION : The Owners Strata Plan 56587 v TMG Developments Pty Limited [2007] NSWSC 1364 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S) : 26/11/07
JUDGMENT DATE : 29 November 2007
JURISDICTION : Equity Division Technology and Construction List
JUDGMENT OF : Einstein J
DECISION : Insurer under Part 6 of Home Building Act 1989 having paid out the Owners Corporation is subrogated to rights of Owners Corporation against developer.
CATCHWORDS : Equity - Rights of subrogation - Insurance Contracts Act - Insurance requirements of Home Building Act 1989 - Insurer having provided insurance under the Home Building Act 1989 - Questions as to what were the limits, if any, to the rights of subrogation of such insurer - Whether insurer was subrogated only to the rights of the builder (who had effected the insurance and paid premiums) whose liabilities had been discharged, so that the insurer could only sue in the name of the builder - Whether the insurer was not subrogated to the rights of the beneficiaries with whom it enjoyed no previous contractual relationship - Consideration of background to statutory scheme set up by the Home Building Act
Corporations Act 2001 (Cth) Home Building Act 1989 (NSW) Home Building Regulation 1990 (NSW) LEGISLATION CITED : Home Building Regulation 1997 (NSW) Insurance Contracts Act 1984 (NSW) Riot (Damages) Act 1886 (UK) Strata Schemes (Freehold Development) Act 1973 (NSW)
Banque Financiere de la Cite v Parc (Battesea) Ltd [1998] 2 WLR 475 Castellain v Preston (1883) 11 QBD 380 Ellerbeck Collieries Ltd v Cornhill Insurance Co Ltd [1932] 1 KB 401 Insurance Commission of Western Australia v Kightly (2005) 225 ALR 380 CASES CITED : Jones & Anor v Building Insurers' Guarantee Corporation [2005] NSWCA 7 National Fire Insurance Co v McLaren (1886) 12 OR 682 Petrofina (UK) Ltd v Magnaload Ltd [1984] QB 127 Simpson & Co v Thomson (1877) 3 App Cas 279 Woodside Petroleum Developments Pty Limited (1999) 20 WAR 380 Zurich Australian Insurance Ltd v Metals and Minerals Insurance Pty Ltd [2007] WASC 62
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