New South Wales
Court of Appeal
CITATION: Allianz v Waterbrook [2009] NSWCA 224 HEARING DATE(S): 10 July 2009
JUDGMENT DATE:
10 August 2009JUDGMENT OF: Giles JA at 1; Hodgson JA at 30; Ipp JA at 32 DECISION: 1. The application for leave to appeal is granted.
2. Allianz to file its notice of appeal within seven days.
3. The answer given by McDougall J to question 3 be amended to "Yes".
4. Waterbrook to pay 75 per cent of Allianz's costs of the appeal.
5. Waterbrook to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
6. Each party to pay its own costs of the separate hearing before McDougall J.CATCHWORDS: BUILDING AND CONSTRUCTION - Home Building Act 1989 - insurance - defective work - successor in title - whether two companies "related" within the meaning of clause 42 of the Home Building Regulation 1997 - whether policy of insurance consistent with Act - where policy excluded liability for defects reasonably visible at the time the successor in title acquired the property - whether successor in title sustains "loss" when acquiring a building with defects that are reasonably visible at the time of acquisition - whether loss includes consequential loss - Home Building Act 1989 ss 18B , 18D, 18E, 99(b) - Home Building Regulation 1997 cl 42(2), 43(1) - Corporations Law s 50. - CAUSATION - general principles - intervening act - whether successor in title who acquires a building in full knowledge of its defects suffers loss from the existence of those defects. - STATUTORY INTERPRETATION - acts of parliament - interpretation - use of subsequent amending act as an aid to interpretation. LEGISLATION CITED: Building Services Corporation Legislation
Amendment Act 1996
Building Services Corporation Legislation Amendment Bill 1996
Building Services Corporation Regulation 1990
Companies (NSW) Code
Corporations law 1991
Home Building Act 1989
Home Building Amendment (Insurance) Act 2002
Home Building Regulation 1997
Home Building Regulation 2004
Motor Accidents Compensation Act 1999
Sale of Goods Act 1893 (UK)
Suitors' Fund Act 1951CATEGORY: Principal judgment CASES CITED: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203
Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609
Commissioner of State Revenue v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651
De Cesare v Deluxe Motors Pty Ltd (1996) 67 SASR 28
Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd [1936] HCA 64; (1936) 57 CLR 610
Dixon v Anti-Discrimination Commissioner of Queensland [2004] QSC 58; [2005] 1 Qd R 33
Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26
Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70
Harding v Commissioner of Stamps (Qld) [1898] AC 769
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Details
- AGLC
- Allianz v Waterbrook [2009] NSWCA 224
- Case
- [2009] NSWCA 224
- Decision Date
CaseChat Overview and Summary
The dispute in *Allianz Australia Insurance Limited v Waterbrook Pty Limited* concerned a claim under a home building insurance policy for defective work. The applicant, Allianz, sought leave to appeal a decision of McDougall J in the Supreme Court of New South Wales. The respondent, Waterbrook, was a successor in title to a building that had undergone significant construction work.
The central legal issues before the Court of Appeal were whether two companies were "related" for the purposes of the *Home Building Regulation 1997*, whether the insurance policy was consistent with the *Home Building Act 1989*, and crucially, whether a successor in title sustains "loss" when acquiring a building with defects that were reasonably visible at the time of acquisition, including any consequential loss. The court also considered the principles of causation in relation to a successor in title acquiring a building with known defects.
The Court of Appeal, comprising Giles JA, Hodgson JA, and Ipp JA, determined that the answer to question 3 posed to McDougall J should be amended to "Yes". This indicates a finding that, in the circumstances of the case, the successor in title did sustain loss. The court granted Allianz leave to appeal and ordered that Allianz file its notice of appeal within seven days. Waterbrook was ordered to pay 75 per cent of Allianz's costs of the appeal, with each party to bear their own costs of the separate hearing before McDougall J.
The central legal issues before the Court of Appeal were whether two companies were "related" for the purposes of the *Home Building Regulation 1997*, whether the insurance policy was consistent with the *Home Building Act 1989*, and crucially, whether a successor in title sustains "loss" when acquiring a building with defects that were reasonably visible at the time of acquisition, including any consequential loss. The court also considered the principles of causation in relation to a successor in title acquiring a building with known defects.
The Court of Appeal, comprising Giles JA, Hodgson JA, and Ipp JA, determined that the answer to question 3 posed to McDougall J should be amended to "Yes". This indicates a finding that, in the circumstances of the case, the successor in title did sustain loss. The court granted Allianz leave to appeal and ordered that Allianz file its notice of appeal within seven days. Waterbrook was ordered to pay 75 per cent of Allianz's costs of the appeal, with each party to bear their own costs of the separate hearing before McDougall J.
Orders
Orders of the court
1. The application for leave to appeal is granted. 2. Allianz to file its notice of appeal within seven days. 3. The answer given by McDougall J to question 3 be amended to "Yes". 4. Waterbrook to pay 75 per cent of Allianz's costs of the appeal. 5. Waterbrook to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 6. Each party to pay its own costs of the separate hearing before McDougall J.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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