AUSTIN -v- VERINI [2015] WASC 258

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 258
Case No:	CIV:2721/2011	Heard:	22 JUNE 2015
Coram:	ALLANSON J	Delivered:	20/07/15
No of pages:	15	Judgment Part:	1 of 1
Result:	Third party liable to indemnify defendant
Category:	B
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Parties:	COLLEEN AUSTIN SALLY JENNIFER BANKS RONALD ROY BARRON DESMOND ERIC DAWSON MICHAEL HAWTHORNE CHRISTINE GAY HUMPHREYS LENNARD DAVID HUMPHREYS ROSLYNN KAYE MAYNARD SHIRLEY ANNE PUSEY MARIA RADICI KENNETH FRANK WASLEY LORNA ELAINE WASLEY STEPHEN DOUGLAS BROWN LARRY EDWARD AYOUB CLAUDIO VERINI WFI INSURANCE LIMITED
Catchwords:	Insurance contract Exclusion clause Whether liability of owner builder for breach of duty is breach as the owner
Legislation:	Builders' Registration Act 1939 (WA), s 4, s 4A(1)(c)
Case References:	Beaulieu v Reliance Insurance Co (of Philadelphia) (1971) 3 OR 75 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 CGU Insurance Limited v Porthouse [2008] HCA 30; (2008) 235 CLR 103 Harm v Winter Kerr [2004] QSC 10 Hartman v GIO Australia Ltd (1996) 9 ANZ Insurance Cases 61-310 Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2001) 243 CLR 361 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Rigby v Sun Alliance & London Insurance Ltd [1980] 1 Lloyd's Rep 359 Sturge v Hackett [1962] 1 Lloyd's Rep 117 Tannous v Mercantile Mutual Insurance Co Ltd (1978) 2 NSWLR 331 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : AUSTIN -v- VERINI [2015] WASC 258 CORAM : ALLANSON J HEARD : 22 JUNE 2015 DELIVERED : 20 JULY 2015 FILE NO/S : CIV 2721 of 2011 BETWEEN : COLLEEN AUSTIN

First Plaintiff

SALLY JENNIFER BANKS

Second Plaintiff

RONALD ROY BARRON

Third Plaintiff

DESMOND ERIC DAWSON

Fourth Plaintiff

MICHAEL HAWTHORNE

Fifth Plaintiff

CHRISTINE GAY HUMPHREYS

Sixth Plaintiff

LENNARD DAVID HUMPHREYS

Seventh Plaintiff

ROSLYNN KAYE MAYNARD

Eighth Plaintiff

SHIRLEY ANNE PUSEY

Ninth Plaintiff

MARIA RADICI

Tenth Plaintiff

KENNETH FRANK WASLEY

Eleventh Plaintiff

LORNA ELAINE WASLEY

Twelfth Plaintiff

STEPHEN DOUGLAS BROWN

Thirteenth Plaintiff

LARRY EDWARD AYOUB

Fourteenth Plaintiff

AND

CLAUDIO VERINI

Defendant

WFI INSURANCE LIMITED

Third Party

Catchwords:

Insurance contract - Exclusion clause - Whether liability of owner builder for breach of duty is breach as the owner

Legislation:

Builders' Registration Act 1939 (WA), s 4, s 4A(1)(c)

Result:

Third party liable to indemnify defendant

Category: B

Representation:

Counsel:

First Plaintiff : Mr T Lampropoulos SC

Second Plaintiff : Mr T Lampropoulos SC

Third Plaintiff : Mr T Lampropoulos SC

Fourth Plaintiff : Mr T Lampropoulos SC

Fifth Plaintiff : Mr T Lampropoulos SC

Sixth Plaintiff : Mr T Lampropoulos SC

Seventh Plaintiff : Mr T Lampropoulos SC

Eighth Plaintiff : Mr T Lampropoulos SC

Ninth Plaintiff : Mr T Lampropoulos SC

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Austin v Verini

Details

AGLC: Austin v Verini [2015] WASC 258
Case: [2015] WASC 258
Decision Date: 20 JULY 2015

CaseChat Overview and Summary

In Austin v Verini, the plaintiff sought damages from the defendant for construction defects in a house, which the defendant had built as an owner-builder. The dispute arose from an insurance policy held by the defendant that was intended to cover third-party liability, but which included an exclusion clause that potentially excluded coverage for liability arising from the defendant's own acts or omissions. The plaintiff sought a declaration that the defendant's insurance policy provided coverage for the defects and that the insurer was required to indemnify the defendant for any liability arising from the defects.

The central legal issues before the court were whether the exclusion clause in the insurance policy applied to the defendant's liability for the construction defects, and if so, whether the third party was still liable to indemnify the defendant under the policy. The court needed to determine whether the defendant's liability for the defects could be considered a breach of his duty as an owner-builder, and whether this was a breach on the part of the insured as defined in the insurance policy.

The court held that the exclusion clause in the insurance policy did apply to the defendant's liability for the construction defects, as the defects arose from the defendant's own acts or omissions as an owner-builder. However, the court also found that the third party remained liable to indemnify the defendant under the policy, as the exclusion clause did not apply to the third party's liability. The court reasoned that the third party's liability was not contingent on the defendant's liability, and that the exclusion clause did not exclude coverage for the third party's liability.

As a result, the court found in favour of the plaintiff and declared that the third party was liable to indemnify the defendant for any liability arising from the construction defects. The court did not make any orders regarding the amount of damages to be paid by the third party to the defendant, as this was not before the court in this particular proceeding.

Orders

Orders of the court

Third party liable to indemnify defendant

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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