HIA Insurance Services Pty Ltd v Davy - [2003] VSCA 73

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8264 of 2001

HIA INSURANCE SERVICES PTY. LTD.
	v.
MARK DAVY

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JUDGES:	CALLAWAY, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2003
DATE OF JUDGMENT:	12 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 73

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Administrative law - Building and construction - Insurance - Appeal from Victorian Civil and Administrative Tribunal - Building contracts - Interpretation - Exclusion clause - Whether insured a "developer", as defined in insurance policy and by Ministerial Order - "Building site" - Whether five units being built for the insured under separate contracts with same builder were built "on any one building site" - Victorian Civil and Administrative Tribunal Act 1998, s.148; Building Act 1993, s.135; Domestic Building Contracts Act 1995, ss.3, 5.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J.A.H. Foxcroft, S.C. Mr E. Riegler	Richmond & Bennison
For the Respondent	Mr J.G. Bolton	Holding Redlich

CALLAWAY, J.A.:

I have had the advantage of reading, in draft, the reasons for judgment prepared by Eames, J.A. I agree with his Honour, for the reasons he gives, that the appeal should be allowed and the questions answered in the affirmative. It was not open to the Tribunal to conclude that there was more than one building site.

VINCENT, J.A.:

I agree with the disposition of this matter proposed by Eames, J.A. and for the reasons advanced by him in his judgment.

EAMES, J.A.:

This is an appeal brought pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision made in the Victorian Civil and Administrative Tribunal (“VCAT”) on 12 October 2001 wherein the Tribunal, constituted by a Vice-President, answered three preliminary questions which had been raised by the parties and which required interpretation of insurance contracts held by the respondent.

The appellant was at all relevant times the sub-agent of Royal & Sun Alliance Insurance Aust. Pty. Ltd. and was authorised to process claims made under contracts of insurance which it issued on behalf of the insurer.[1] At all relevant times the respondent was the owner of property located at 13-15 Thompson Street, Williamstown (“the property”) which at the time the contracts were entered comprised land held under two adjoining certificates of title. On one lot there was an existing dwelling, but the other was vacant land when the properties were acquired. The respondent proposed building four dwellings, renovating the existing

dwelling and then sub-dividing the block. His intention in building the dwellings was not for their re-sale but to provide accommodation for his children and for himself. The respondent applied for and obtained a planning permit which provided for the demolition of existing outbuildings, a single storey addition to the existing dwelling and the use and development of the land for five dwellings comprising four double-storey dwellings and renovation of the existing dwelling. Three of the dwellings were to be attached, with common walls. An objection to the work led to a hearing before VCAT, which…

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.

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Details

Case: [2003] VSCA 73
Decision Date: 12 June 2003

CaseChat Overview and Summary

In the matter of HIA Insurance Services Pty Ltd versus Davy, the case was heard before the court, which was asked to consider an appeal from a decision of the Victorian Civil and Administrative Tribunal. The primary issue in this case was the interpretation of an insurance policy, specifically whether the insured party was a "developer" as defined both in the policy and by a relevant Ministerial Order, and whether the five units being built for the insured under separate contracts with the same builder were constructed "on any one building site".

The court was tasked with determining the applicability of an exclusion clause within the insurance policy, and whether the insured's activities fell within the scope of the exclusion. Additionally, the court had to decide whether the five units being built were part of a single building site, which would affect the insured's eligibility for coverage under the policy.

The court considered the definitions of "developer" and "building site" as outlined in the insurance policy and the relevant Ministerial Order. It was found that the insured did not meet the definition of a "developer" under the policy or the Ministerial Order, and therefore the exclusion clause did not apply. Furthermore, the court determined that the five units being built for the insured were not part of a single building site, as they were subject to separate contracts with the same builder. As a result, the insured was not eligible for coverage under the policy.

The court's decision was that the appeal was dismissed, and the original decision of the Victorian Civil and Administrative Tribunal was upheld. The insured party was not entitled to coverage under the insurance policy, and the exclusion clause applied as a result of their status as a "developer" and the nature of the building site.

Orders