AAI Ltd t/as Vero Insurance v Kalnin Corporation Pty Ltd; Kalnin Corporation Pty Ltd v AAI Ltd t/as Vero Insurance [2017] NSWSC 548

Supreme Court New South Wales

Medium Neutral Citation: AAI Ltd t/as Vero Insurance v Kalnin Corporation Pty Ltd; Kalnin Corporation Pty Ltd v AAI Ltd t/as Vero Insurance [2017] NSWSC 548 Hearing dates: 18, 19, 20, 24 April & 1 May 2017 Decision date: 05 May 2017 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: See [19] to [21]: plaintiff's claim fails; further submissions invited as stated at [21] Catchwords: CONTRACT – indemnity by defendant to plaintiff for loss suffered as a result of claim made by owners corporation under residential building insurance policy – proper construction of indemnity – whether condition precedent to liability established – whether plaintiff issued policy of the kind referred to in indemnity – whether plaintiff was obliged to indemnify owners corporation for loss now claimed against defendant; BUILDING AND CONSTRUCTION – whether defects in residential building were structural defects – whether defects complained of by owners corporation were in a structural element – whether defects were structural defects that were likely to result in physical damage to any part of the building – proper construction of reg 57AC of Home Building Regulation Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Building Regulation 2004 (ACT) Evidence Act 1995 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 1997 (NSW) Legislation Act 2001 (ACT) Trade Practices Act 1974 (Cth) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; HCA 31 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Norcast S.ar.L v Bradken Limited (No 2) [2013] FCA 235 O'Neill v Vero Insurance Ltd [2008] VSC 364 Re Golden Key Ltd [2009] EWCA Civ 636 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 Simic v New South Wales Land and Housing Corporation [2016] HCA 47 Stone v Chappel [2016] SASC 32 The Owners – Units Plan 1917 v Koundouris [2016] ACTSC 96 Vero Insurance Ltd v Harden Jones [2009] WADC 70 Wesfarmers General Insurance Limited v Jameson [2016] NSWCATAP 136 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 Texts Cited: Macquarie Dictionary Australia Online (Macmillan Publishers, 2017) Oxford English Dictionary Online (Oxford University Press, 2017) Category: Principal judgment Parties: AAI Limited trading as Vero Insurance (Plaintiff/Cross-Defendant) Kalnin Corporation Pty Ltd (First Defendant/Cross-Claimant) Laurence Nash Kalnin (Second Defendant/Cross-Claimant) Representation: Counsel: D D Feller SC with C Purdy (Plaintiff/Cross-Defendant) M R Elliott (Defendants/Cross-Claimants)