Gardez Nominees Pty Ltd -v- NSW Self Insurance Corporation [2016] NSWSC 532

Supreme Court New South Wales

Medium Neutral Citation: Gardez Nominees Pty Ltd -v- NSW Self Insurance Corporation [2016] NSWSC 532 Hearing dates: 18 and 23 March 2016 Decision date: 28 April 2016 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Separate Questions answered as follows:

Question 1: Is Gardez, by virtue only of becoming a mortgagee in possession, Railway's successor in title within the meaning of s 18D(1) and s 99(1)(b) of the Act?

Answer: No.

Question 2: Is Gardez, by virtue only of becoming a mortgagee in possession, capable of becoming a non-contracting owner in relation to the building contract between Railway and the builder within the meaning of s 3, s 18D(1A) and s 99(2A) of the Act?

Answer: No

Question 3: If Gardez is a non-contracting owner in relation to the building contract, does s 99(2A) provide cover for the benefit of Gardez in relation to work done prior to 27 June 2014 in circumstances where Railway is a developer in relation to that work and therefore is not entitled to the benefit of cover under s 99(2)(a) and the policy?

Answer: Does not arise, but if Gardez was a non-contracting owner it obtained no right to claim against the insurer.

Question 4: Is Gardez a person on whose behalf work was done pursuant to the side deed, or alternatively pursuant to the building contract and therefore, upon becoming a mortgagee in possession on 27 June 2014, a developer in relation to the work done prior to 27 June 2014 within the meaning of s 3A(1) of the Act?

Answer: No.