Vero Insurance Ltd v Kassem [2011] NSWCA 381

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vero Insurance Ltd v Kassem [2011] NSWCA 381 Hearing dates: 30 August 2011 Decision date: 13 December 2011 Before: Campbell JA at [1]; Young JA at [123]; Meagher JA at [182] Decision: Leave to appeal granted. Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: BUILDING AND CONSTRUCTION- Home Building Act 1989 s 18E- proceedings for breach of statutory warranty to be commenced within seven years after the completion of the work to which it relates- whether limitation period commences with date of practical completion of the works as a whole or when the work to which the damage relates was completed- limitation period commences upon completion of work to which it relates.

BUILDING AND CONSTRUCTION- damages claim for breach of statutory warranties- mitigation of damage- where the insurer denied liability for the claim for nearly four years- whether the damage became worse during the period that the insurer was denying liability- whether the action of the insurer in not settling the claim was an unreasonable failure to mitigate its damage.

CORPORATIONS- deed of company administration entered into- whether DOCA should be terminated- Corporations Act 2001 (Cth)- whether the DOCA was oppressive or unfairly prejudicial, unfairly discriminatory or contrary to the interests of the creditors of the company as a whole- purpose of a DOCA is to maximise the chances of a company continuing in existence or achieve a better return for the company than would result from an immediate winding up- Court can also take into account the public interest, including the public interest in examination of a company's affairs- possibility of better return from winding up not demonstrated- DOCA not terminated.