TUDOR DEVELOPMENTS PTY LTD v MAKEIG [2008] NSWCA 263

Reported Decision: 72 NSWLR 624

New South Wales Court of Appeal

CITATION: TUDOR DEVELOPMENTS PTY LTD v MAKEIG [2008] NSWCA 263

HEARING DATE(S): 12 August 2008

JUDGMENT DATE: 21 October 2008

JUDGMENT OF: Beazley JA at 1; Basten JA at 2; Handley AJA at 81

DECISION: Appeal dismissed with costs.

CATCHWORDS: PRACTICE & PROCEDURE – separate question determined – where no evidence before primary judge – whether Court should rely on facts asserted in statement of claim and admitted by respondent - BUILDING AND CONSTRUCTION – contracts for sale of land subject to residential building work – prohibition on contracts without certificate of insurance – purpose of prohibition – purchaser protection – consequences of contravening s 96A(1) – penalties – power to avoid – whether Part 6 of Home Building Act 1989 (NSW) can be excluded – whether general law principles of estoppel operate over s 96A(3) – Home Building Act 1989 (NSW) s 96A - CONTRACTS – statutory power to avoid contract – where failure to provide certificate of insurance for contract of sale of land subject to residential building work – scope of power – Home Building Act 1989 (NSW) s 96A - EQUITY – estoppel – election – whether estoppel qualifies power to avoid contract under s 96A of Home Building Act 1989 (NSW) – relationship between estoppel and election - STATUTORY INTERPRETATION – purposive construction – statutory language – legislative history – consequences of failure to comply with prohibition on contracts for sale of land subject to residential building work without providing certificate of insurance – whether general law principles of estoppel operate over s 96A(3) – whether precluding reliance on estoppel unfair – consistency of s 96A(3) with s 103D – absence of protection against harsh consequences – predecessors to ss 96A and 103D – legislative history of builders' insurance for residential building work – economic sanctions for non-compliance with insurance requirements – purpose of insurance schemes – purchaser protection – judicial consideration of similar legislation to interpret s 96A of Home Building Act 1989 (NSW) – Home Building Act 1989 (NSW) ss 96A, 103D, Part 6 – Builders Licensing Act 1971 (NSW) – Building Services Corporation Act 1989 (NSW) ss 94, 95, 97