NSW Caselaw
New South Wales Court of Appeal
CITATION: Allianz v Waterbrook [2009] NSWCA 224
HEARING DATE(S): 10 July 2009
JUDGMENT DATE: 10 August 2009
JUDGMENT OF: Giles JA at 1; Hodgson JA at 30; Ipp JA at 32
1. The application for leave to appeal is granted. 2. Allianz to file its notice of appeal within seven days. DECISION: 3. The answer given by McDougall J to question 3 be amended to "Yes". 4. Waterbrook to pay 75 per cent of Allianz's costs of the appeal. 5. Waterbrook to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 6. Each party to pay its own costs of the separate hearing before McDougall J.
CATCHWORDS: BUILDING AND CONSTRUCTION - Home Building Act 1989 - insurance - defective work - successor in title - whether two companies "related" within the meaning of clause 42 of the Home Building Regulation 1997 - whether policy of insurance consistent with Act - where policy excluded liability for defects reasonably visible at the time the successor in title acquired the property - whether successor in title sustains "loss" when acquiring a building with defects that are reasonably visible at the time of acquisition - whether loss includes consequential loss - Home Building Act 1989 ss 18B , 18D, 18E, 99(b) - Home Building Regulation 1997 cl 42(2), 43(1) - Corporations Law s 50. - CAUSATION - general principles - intervening act - whether successor in title who acquires a building in full knowledge of its defects suffers loss from the existence of those defects. - STATUTORY INTERPRETATION - acts of parliament - interpretation - use of subsequent amending act as an aid to interpretation.
Building Services Corporation Legislation Amendment Act 1996 Building Services Corporation Legislation Amendment Bill 1996 Building Services Corporation Regulation 1990 Companies (NSW) Code Corporations law 1991 LEGISLATION CITED: Home Building Act 1989 Home Building Amendment (Insurance) Act 2002 Home Building Regulation 1997 Home Building Regulation 2004 Motor Accidents Compensation Act 1999 Sale of Goods Act 1893 (UK) Suitors' Fund Act 1951
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