Building Insurers’ Guarantee Corporation v The Owners – Strata Plan No. 57504 [2010] NSWCA 23

New South Wales Court of Appeal

CITATION: Building Insurers' Guarantee Corporation v The Owners – Strata Plan No. 57504 [2010] NSWCA 23

HEARING DATE(S): 23/11/09

JUDGMENT DATE: 15 March 2010

JUDGMENT OF: Tobias JA at 1; Campbell JA at 2; Handley AJA at 3

EX TEMPORE JUDGMENT DATE: 2 March 2010

DECISION: Appeal dismissed with costs.

CATCHWORDS: BUILDING CONTRACT - breach by builder - work not in conformity with plans & specifications - waterproofing system - whether system installed as effective as that specified - query whether issue one of mitigation with onus on builder. - BUILDING CONTRACT - breach by builder - whether demolition and reinstatement to produce compliance with contract reasonable - whether damages recoverable on that basis. - HOME BUILDING INSURANCE - breach of statutory implied warranties by builder – insurance - successor in title entitled to benefit of warranties and insurance - measure of damages - successor entitled to same damages as predecessor.

LEGISLATION CITED: Home Building Act 1989, s 92 Home Building Amendment (Insurance) Act 2009

CATEGORY: Principal judgment

Allianz Australia Insurance Ltd v Waterbrook at Yowie Bay Pty Ltd [2009] NSWCA 224 Bellgrove v Eldridge [1954] HCA 36, 90 CLR 613, Christopoulos v Angelos (1996) 41 NSWLR 700 CASES CITED: Kirkby v Coote [2006] QCA 61 Luxley Electronics & Construction Ltd v Forsyth [1996] AC 344 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8, 236 CLR 272