Suncorp Metway Insurance Ltd v Owners Corporation SP 64487 [2009] NSWCA 223

New South Wales Court of Appeal

CITATION: Suncorp Metway Insurance Ltd v Owners Corporation SP 64487 [2009] NSWCA 223

HEARING DATE(S): 10 July 2009

JUDGMENT DATE: 31 July 2009

JUDGMENT OF: Campbell JA at 1; Macfarlan JA at 2; Sackville AJA at 3

DECISION: 1. Appeal dismissed. 2. Appellant to pay the Respondents' costs.

CATCHWORDS: INSURANCE – Home warranty insurance - Claim made by successors in title to the developer in respect of defects - Policy defined "Contractor" as the person who entered into building contract - Whether the individuals named in the Policy were the "contractor" or whether a company controlled by them had entered into the building contract - Inferences to be drawn from contemporaneous documentation - Need to consider legislative amendments.

LEGISLATION CITED: Home Building Act 1989 (NSW)

Brambles Holdings Ltd v Bathurst City Council; [2001] NSWCA 61; (2001) 53 NSWLR 153 British and Foreign Marine Insurance Co Ltd v Gaunt [1921] 2 AC 41 Gett v Tabet [2009] NSWCA 76 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11 Kodak Australasia Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) 42 SR (NSW) 231 CASES CITED: Lee v Lee's Air Farming Ltd [1961] AC 12 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Toikan International Insurance Broking Pty Ltd v Plasteel Windows Australia Pty Ltd (1989) 15 NSWLR 641 Tomko v Palasty [2007] NSWCA 258 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531