HIH Casualty and General Insurance Ltd v Jones
[2000] NSWSC 359
•10 May 2000
CITATION: HIH v Jones [2000] NSWSC 359 FILE NUMBER(S): SC 10055/00 HEARING DATE(S): 14/04/00 JUDGMENT DATE: 10 May 2000 PARTIES :
HIH Casualty and General Insurance Ltd v Jones & OrsJUDGMENT OF: James J
COUNSEL : C Gee QC/J Gooley - Plaintiff
B Ralston - 1st and 2nd DefendantsSOLICITORS: HIH Legal Services Pty Limited - Plaintiff
Luchettie & Company - 1st and 2nd DefendantsCATCHWORDS: Home Building Act ss3A, 92, 96, 99, 101, 103C, 103D DECISION: Appeal dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJAMES J
10 May 2000
10055/2000 - HIH Casualty and General Insurance Ltd v Jones & Anor
JUDGMENT
1 HIS HONOUR: This is an appeal by HIH Casualty and General Insurance Limited (“HIH”) from a decision of the Fair Trading Tribunal given on 6 December 1999 in favour of Stephen Jones and Roslyn Jones (“the Joneses”). The appeal raises questions of the proper interpretation of certain provisions of the Home Building Act 1989 No. 147 and the Home Building Regulation 1997.
2 There was no dispute, either before the Tribunal or on this appeal, about the background facts, which can be briefly summarised as follows.
3 At all material times the Joneses were the owners of, or at least had some interest in, land at Alexandria. On 17 June 1997 they entered into a contract with Acosta Constructions Pty Limited (“Acosta”) for the construction by Acosta of a block of home units on the land (“the works”). Acosta issued a “Certificate of Insurance to do residential building work”, pursuant to an authority from HIH as insurer. It will be necessary to refer to the Certificate of Insurance and to the terms, conditions and exclusions of the Contract of Insurance in more detail later in this judgment.
4 Acosta commenced to carry out the works. However, disputes arose between the Joneses and Acosta and the Joneses terminated the building contract. Acosta was wound up, without the works having been completed.
5 The Joneses made a claim on the Contract of Insurance with HIH. This claim was rejected by HIH, on the grounds that the Joneses were the “developer” within an exclusion clause in the Contract of Insurance (cl 5.8).
6 The Joneses brought proceedings in the Fair Trading Tribunal, challenging HIH’s rejection of their claim. On 6 December 1999 the Tribunal gave a reserved decision in favour of the Joneses, holding that cl 5.8 of the Contract of Insurance was rendered void by certain provisions of the Home Building Act and that, consequently, HIH was not entitled to exclude the Joneses from the benefit of the Contract of Insurance.
7 HIH then brought this appeal to this Court. It was accepted by the Joneses that the appeal was competent.
8 It is convenient at this stage to trace some of the legislative history of the Home Building Act (“the Act”) and to examine some of the provisions of the Act.
9 The Act was enacted in 1989 as the Building Services Corporation Act. The name of the Act was changed to the Home Building Act by the Building Services Corporation Legislation Amendment Act 1996 No. 122 (s 3; Sch 5 (2)).
10 Although the provisions of the Act relating to insurance were substantially changed by the 1996 Amendment Act, it is necessary to refer to the original provisions about insurance in the Act and in the Building Services Corporation Regulation made under the Act, as they were made the basis of a submission by counsel for the appellants.
11 Part 6 of the Act as enacted in 1989 was headed “BSC Insurance”. Section 91 in Pt 6 provided that the regulations could prescribe two insurance schemes, to be known as “the BSC Comprehensive Insurance Scheme (which contains the conditions on which BSC comprehensive protection is to be provided)” and “the BSC Special Insurance Scheme (which contains the terms and conditions on which BSC special protection is to be provided)”. The two schemes prescribed for the purposes of Pt 6 of the Act were referred to in Pt 6 of the Act as “BSC Insurance”. Section 91 (3) of the Act provided:-12 Section 91 (4) of the Act provided:-
“The conditions of BSC Insurance must, in the case of each scheme, identify those having the benefit of the scheme but may also impose limits on, and exceptions from, the making or payment of claims”.
“The Corporation (that is, the Building Services Corporation constituted by the Act) is to be the insurer under both schemes”.
13 In this judgment it is necessary to have regard only to the BSC Comprehensive Insurance Scheme.
14 Part 6 of the Building Services Corporation Regulation dealt with BSC Insurance. Clause 31 in Pt 6 included a definition of “developer”. Clause 33 in Pt 6 provided in part that for the purposes of Pt 6 of the Act the BSC Comprehensive Insurance Scheme was prescribed in form 4. Form 4 to the Regulation was not really a form but rather a set of provisions. Clause 4 in form 4 was in the following terms:-
“ 4. (1) Subject to subclause (2), beneficiaries are:
(a) the owner of the land on which the residential building work was done or was contracted to be done, except where the work was authorised to be done under an owner-builder permit; and
(b) the person, other than the owner, who contracted to have the residential building work done; and
(c) the successor in title to the owner of the land on which the residential building work was done.
(2) The following persons are not beneficiaries:
(a) developers, as defined in clause 31 of the Building Services Corporation Regulation 1990;
(b) the holder of a licence who or which carried out the residential building work under a contract or otherwise;
(c) companies which are related, within the meaning of the Companies (New South Wales) Code, to any corporate person referred to in paragraph (a) or (b)”.
15 Accordingly, a person who was a “developer” within the definition in cl 31 of the Building Services Corporation Regulation was not a beneficiary under the BSC Comprehensive Insurance Scheme.
16 In 1995 administration of the BSC Comprehensive Insurance Scheme was transferred from the Building Services Corporation to the Department of Fair Trading.
17 The Act was substantially amended by the Amendment Act 1996 No 122. By s3 of the Amendment Act the Act was amended as set out in Schedules 1-5 of the Amendment Act. As already noted, the name of the Act was changed to the Home Building Act (Sch 5(2)). By Sch 1(2) a new section 3A was inserted in the Act, which provided:-
“(1) For the purposes of this Act, an individual, a partnership or a corporation on whose behalf residential building work is done in the circumstances set out in subsection (2) is a developer who does the work.
(2) The circumstances are:
(a) the residential building work is done in connection with an existing or proposed dwelling in a building or residential development where 4 or more of the existing or proposed dwellings are or will be owned by the individual, partnership or corporation, or
(b) the residential building work is done in connection with an existing or proposed retirement village or accommodation specially designed for the disabled where all of the residential units are or will be owned by the individual, partnership or corporation.
(3) A company that owns a building under a company title scheme is not a developer for the purposes of this Act”.
18 By sch 1(7) a new Pt2C containing “statutory warranties” was inserted in the principal Act. By s18B in Pt2C warranties on the part of the builder are implied in every contract to do residential building work.
19 By Sch 4 the provisions of the Act relating to insurance were completely changed. By par (3) of Sch 4 Pt 6 of the Act was omitted and a new Pt 6 was inserted. It is necessary to set out many of the provisions in the new Pt 6.20 Section 94
Section 92
“ Contract work must be insured
(1) A person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work.
Maximum penalty: 100 penalty units.
(2) A person must not contract to do any residential building work unless a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, is attached to the contract.
Maximum penalty: 100 penalty units”.
21 Section 101
“ Effects on contract of contravention
(1) A person who enters into a contract in contravention of section 92(1)…:-
(a) is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract or to recover money in respect of work done under the contract under any other right of action (including a quantum meruit action), but
(b) is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person.
(2) This section does not affect the liability of any such person for an offence against a provision made by or under this or any other Act.”
Section 96
“ Insurance by developers and other persons
(a) A person who does residential building work otherwise than under a contract, or a developer who does residential building work must not do the residential building work, unless a contract of insurance that complies with this Act is in force in relation to that work.
Maximum penalty: 100 penalty units.
(2) A person who does residential building work otherwise than under a contract, or a developer who does residential building work, must not enter into a contract for the sale of land on which the residential building work has been done, or is to be done, unless a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, is attached to the contract.
Section 99:
Maximum penalty: 100 penalty units.”
“ Requirements for insurance for residential building work
A Contract of Insurance in relation to residential building work required by section 92 must insure:
(a) a person on whose behalf the work is being done against the risk of loss resulting from non-completion of the work because of the insolvency or death of the contractor or because of the fact that, after due search and inquiry, the contractor cannot be found, and
(b) a person on whose behalf the work is being done and the person’s successors in title against the risk of loss arising from a breach of a statutory warranty in respect of the work”.
“ Requirements for insurance by owner-builders, developers and others
A contract of insurance in relation to owner-builder work or residential building work required by section 95 or 96 must insure a purchaser of the land on which the work is done and the purchaser’s successors in title against the risk of loss arising from a breach of a statutory warranty in respect of the work”.
Section 103C
“ Regulations
(1) The Governor may make regulations for or with respect to requirements for insurance required to be entered into under this Part.
(2) Without limiting subsection (1), regulations may be made for or with respect to the following:
(a) limitations on liability,
(b) beneficiaries under the Contract of Insurance,
(c) losses indemnified,
(d) the period within which a claim must be made,
(e) subrogation,
(f) when an insurance claim is taken to have been refused,
(g) the manner of determining the maximum amount of insurance cover,
(h) when work is complete,
(i) the making of appeals against decisions of insurers, including the time within which appeals may be made.”
Section 103D
“Part may not be excluded
A provision of a contract or another agreement that purports to restrict or remove the rights of a person under this Part is void”.
22 I have not set out s93, which required that the supply of a kit home be insured, or s95, which required owner-builder insurance.
23 It is necessary also to refer to the definitions in s3 of the Act of “dwelling” and “residential building work”.
24 “Dwelling” was defined as meaning:25 “Residential building work” was defined as meaning:
“a building or portion of a building that is designed, constructed or adapted for use as a dwelling (such as a detached or semi-detached house, transportable house, terrace or town house, duplex, villa-home, strata or company title home unit or residential flat)”.
“any work involved in, or involved in co-ordinating or supervising any work involved in:
(a) the construction of a dwelling, or
(b) the making of alterations or additions to a dwelling, or
(c) the repairing, renovation, decoration or protective treatment of a dwelling.
· It includes specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation).
· It does not include work that is declared by the regulations to be excluded from this definition”.
26 After the passing of the Amendment Act, a new Regulation, the Home Building Regulation 1997, was prescribed. Part 5 of the new Home Building Regulation was headed “Insurance requirements”. Clause 39 in Pt 5 contained definitions inter alia of “beneficiary”, “contractor”, “insurance contract” and “insurer”. Clause 42 in Pt 5 was in the following terms:-
“42 Beneficiaries
(1) An insurance contract must provide that the beneficiaries under the contract are:
(a) a person:
(i) on whose behalf residential building work covered by the contract is done or is to be done, or
(ii) to whom a kit home covered by the contract is supplied or is proposed to be supplied, or
(iii) who is a purchaser of land on which owner-builder work, or work required by section 95 or 96 of the Act to be insured, and covered by the contract, is done, or
(b) a successor in title to any person referred to in paragraph (a) (i), (ii) or (iii).
(2) The following persons are not required to be beneficiaries under an insurance contract:
(a) a developer who does residential building work,
(b) a person who does residential building work other than under a contract,
(c) a holder of a licence who or which carried out residential building work,
(d) companies related, within the meaning of the Corporations Law , to any corporate person referred to in paragraph (a), (b) or (c).
(3) Nothing in this clause prevents a person referred to in subclause (2) from being a beneficiary under an insurance contract.
(4) For the purposes of this clause, the owner or owners of common property the subject of work referred to in section 95 or 96 of the Act are taken to be purchasers of the land on which the common property is situated.”
27 After this survey of the legislation and regulations I will examine in more detail the Certificate of Insurance and the Contract of Insurance.
28 The Certificate of Insurance included the following:-29 The terms, conditions and exclusions on the reverse of the Certificate of Insurance included the following:-
“Certificate of Insurance to do Residential Building Work
This Certificate of Insurance is issued by The Contractor under an authority granted to them by The Insurer under a Master Policy ….
Home Building Act 1989
Form 4 - Contract Work, Form 5 - Supply of Kit Home, Form 7 - Work by Developers and Others.
A Contract of Insurance complying with section 92 or section 93 or section 96 as the case may be of the Home Building Act 1989
has been issued by : HIH Casualty and General Insurance Limited… (The Insurers)
in respect of… (The Works)
***
carried out by: Acosta Constructions Pty Ltd
beneficiary: Stephen & Roslyn Jones
Subject to the Act and the Home Building Regulation 1990 and the conditions of the insurance contract, cover will be provided to the person named as the beneficiary above and successors in title to the beneficiary.
***
Acknowledgment by the Beneficiary
I/we The Beneficiary specified above confirm having read and understood the terms and conditions detailed on the reverse side hereof and agree that I/we will abide by the policy terms and conditions so specified. We also understand that failure by us to comply may result in a reduced claim settlement or no settlement at all. I/we also confirm that there is no known fact or circumstance of which I/we are aware which would affect either The Contractor’s or Insurer’s acceptance of the risk insured under this Certificate of Insurance”.
Signed By The Beneficiary…” (the Joneses’ signatures appear).
“1 Insuring Agreement
***
Insurers hereby agree to make good all Claims for loss or damage made against The Contractor for:-
1.1 failure to complete The Work or failure to complete the supply of a Kit Home as a direct result of the:-
i) Insolvency or death of The Contractor, or
ii) Disappearance of The Contractor, or
iii) early termination of the contract for The Work because of The Contractor’s wrongful failure or wrongful refusal to complete The Work or the supply;
1.2 Failure to rectify a breach of a Statutory Warranty.
***
2. Definitions
2.1 The Insurer is HIH Casualty and General Insurance Limited…
2.2 A Contractor is the contractor specified on the reverse hereof …
2.3 A Beneficiary is You the person specified as a beneficiary on the reverse hereof and your successors in title.
2.4 A claim means any written notice to The Contractor and The Insurer from You setting out the exact details of the issues requiring rectification and/or completion together with evidence of the failure of The Contractor to rectify and/or complete such issues.
***
2.7 The Work is Residential Building Work as defined in The Act and as specified on the reverse hereof….
***
2.10 Statutory Warranty has the same meaning as in The Act and only applies to Residential Building Work
2.11 Developer has the same meaning as described in Section 3A of The Act.
***
5. Exclusions - The Insurance Will Not Pay Claims:-
***
5.8 If You are also The Contractor or Developer.”
30 The grounds on which HIH rejected the insurance claim made by the Joneses was that, according to HIH, the Joneses fell within s3A of the Home Building Act and were accordingly “a developer who does the work”, that consequently they were “a developer” for the purposes of the Contract of Insurance (cl 2.11 of the Contract of Insurance) and, as they were “a developer”, HIH did not have to pay their claim. (cl 5.8 of the Contract of Insurance).
31 On the hearing of this appeal the Joneses accepted that, under the terms, conditions and exclusions of the Contract of Insurance, as set out on the reverse of the Certificate of Insurance, their claim would be excluded by cl 5.8.
32 However, it was submitted on their behalf that Acosta was obliged to comply with s92 of the Act; that the Contract of Insurance was a contract of insurance obtained by Acosta in compliance with its obligation under s92; that by s99 any contract of insurance required by s92 had to insure the person on whose behalf the work was being done against the risk of loss resulting from non-completion of the work by reason of any of the factors mentioned in par(a) of s99; that they were persons on whose behalf the work was being done; that by virtue of s103D any provision of a contract of insurance that purported to remove the rights of a person under Pt6 of the Act was void; and that consequently cl 5.8 of the Contract of Insurance was void.
33 One reply made by HIH to these submissions, both before the Tribunal and on this appeal, was that if a person is “a developer who does (residential building) work” by virtue of s3A of the Act, then, even if the person is also a person on whose behalf the residential building work is being done by a contractor, s92 of the Act does not apply. In these circumstances, it was contended by HIH, the sections of the Act which apply are sections 96 and 101, and not sections 92 and 99.
34 The Fair Trading Tribunal summarised its reserved decision of 6 December 1999 as follows:-
“1. It is irrelevant that the Applicants are developers within the meaning of section 3A, because they also happen to be ‘the persons on whose behalf the work was being done’ under the building contract with the contractor. They are therefore entitled to be insured under section 99 as well as being ‘beneficiaries’ as defined in clause 39 of the Regulations. They are a person referred to in clause 42(1)(a) and cannot be excluded by clause 42(2)(a) because they are not a ‘developer who does residential building work’.
2. Accordingly, the Respondent is not entitled to exclude the Applicants from the section 92 insurance cover in question. Clause 5.8 purporting to exclude ‘developers’ is inconsistent with the Act and the Regulations and is an attempt to restrict or remove the rights that the Applicants have under section 99. It is therefore void pursuant to section 103D (and cannot be cured by the Applicants’ signatures acknowledging they have read and understood the terms and conditions)”.
35 I turn now to consider the submissions made on behalf of HIH on the hearing of this appeal.
36 Counsel for HIH submitted that the Joneses, by reason of falling within s3A of the Act, were “a developer”, or, more accurately, a “developer who does the work” and that they were therefore a “developer” within the meaning of that word as used in the Contract of Insurance. So much was conceded by counsel for the Joneses, as had been conceded previously before the Tribunal.
37 It was pointed out by counsel for HIH that under the conditions of the BSC Comprehensive Insurance Scheme, as set out in form 4 of the Building Services Corporation Regulation and particularly cl4, “developers” as defined in cl31 of the Building Services Corporation Regulation were not beneficiaries under the BSC Comprehensive Insurance Scheme.
38 It was not, of course, submitted by counsel for HIH that the conditions of the BSC Comprehensive Insurance Scheme applied in the present case. However, it was submitted that the conditions of the BSC Comprehensive Insurance Scheme were of some assistance in interpreting the provisions of the Act and the Home Building Regulation, as in force in 1997. It was submitted that it was unlikely that the legislature had intended, when the Act was amended in 1996, to move from a system of insurance in which developers were not beneficiaries to a system of insurance in which developers had to be beneficiaries.
39 In my opinion, only limited weight should be given to this submission. There are very substantial differences between, on the one hand, the system of insurance provided for by the Act as originally enacted and the Building Services Corporation Regulation and, on the other hand, the system of insurance provided for by the Act as amended in 1996 and the Home Building Regulation. As I have already noted, the 1996 Amendment Act deleted the original Pt 6 of the Act and inserted a completely new Pt 6 in the Act. The system of insurance was changed from a system in which the insurer would be a specially constituted corporation to a system in which the insurers would be private insurers.
40 The term “developer” was defined in cl 31 of the Building Services Corporation Regulation. The term “developer”, as such, was not defined in the Act as in force in 1997, either in the general definitions section near the commencement of the Act or in Pt6 of the Act. Nor was there any definition of “developer” in the general definitions clause of the Home Building Regulation or in Pt 5 of the Home Building Regulation. Section 3A of the Act merely provided that, in certain circumstances, which were different from the circumstances set out in cl31 of the Building Services Corporation Regulation by virtue of which a person would be a “developer", a person was to be regarded as a “developer who does the work”.
41 Both counsel for HIH and counsel for the Joneses sought to rely on second reading speeches made by the responsible Minister in introducing bills to amend the Act.
42 Counsel for HIH sought to rely on passages in those speeches in which the Minister said that a purpose of the legislation was to protect “consumers”. For example, in her speech moving that the Bill which became the Amendment Act 1996 be read a second time, the Minister for Fair Trading said “it will be compulsory for home builders to have insurance cover. The beneficiaries will be their client, the consumer” (Hansard Legislative Assembly 30 October 1996 5541). It was submitted, on the basis of this and other references to “consumers” as the persons intended to be benefited by the Act, that the Act should not be interpreted so as to benefit “developers”.
43 I have taken this submission into account. However, the strength of the submission is reduced by the fact that the word “consumer” has frequently been used in fair trading Legislation, both State and Federal, to mean (subject to qualifications and exceptions) a person to whom goods or services are supplied, that is a user of goods or services. Earlier in her speech the Minister had said that a purpose of the Bill which became the Amendment Act of 1996 was “establishing the right conditions for fair trading between consumers and contractors in the home building industry”.
44 Counsel for the Joneses, for his part, sought to rely on assertions by the Minister such as that the purpose of the bill which became the 1996 Amendment Act was to make it “compulsory for home builders to have insurance cover” and that “the new insurance scheme will apply to all residential building work currently requiring a licence and costing over $5,000”, as showing that the new insurance scheme was intended to provide insurance against defaults by the builder for all persons for whom residential building work was done.
45 It was further submitted on behalf of the appellant in written submissions that the work which Acosta contracted to perform was not “residential building work” and hence s92 did not apply.
46 This submission was based on the definitions of “residential building work” and “dwelling” in s3 of the Act, which refer to the construction of a “dwelling” and which, it was submitted, would not include work which involved the construction of a building containing multiple dwellings.
47 This submission was not pressed at the hearing, although it was not formally withdrawn. It seems to me clear that work involved in the construction of a building containing multiple dwellings is “residential building work” within the definition in s3 (see Interpretation Act s8(b)). The submission is inconsistent with other submissions made on behalf of HIH, which depended on the works being “residential building work”, for example the submission that s3A applied so as to make the Joneses “a developer who does the work” and the submission that s96 applied because the Joneses were “a developer who does residential building work”. Under clause 2.7 of the Contract of Insurance between HIH and the Joneses it was agreed that the works were “residential building work”. I reject this submission made by counsel for HIH.
48 The critical submission made by counsel for HIH on the hearing of the appeal was based on an argument which I have already referred to earlier in this judgment. This argument was that, if a person on whose behalf residential building work is being done is a “developer”, or at least “a developer who does work” by reason of s3A of the Act, then s92 of the Act does not apply and it is s96 of the Act which is to be applied. If s96 of the Act applies, then the contract of insurance which is required by that section is a contract of insurance complying with s101 of the Act, and not a contract of insurance complying with s99 of the Act, and the requirements for a contract of insurance under s101 would not conflict with cl 5.8 of the Contract of Insurance and hence cl5.8 would not be invalidated. It was contended that the Tribunal had erred in holding that s92 and s99 of the Act applied, and not s96 and s101.
49 A further argument put by counsel for HIH was that s103C of the Act conferred a power to make regulations “for or with respect to requirements for insurance required to be entered into under this part"; that this power to make regulations was not limited, as was the general power to make regulations under the Act conferred by s140, by the words “not inconsistent with this Act”; that Pt5 of the Regulation had been prescribed in exercise of the power conferred by s103C; and that under cl42(2)(a) of the Regulation a person who is not required to be a beneficiary under an insurance contract is “a developer who does residential building work”.
50 I do not accept the argument that s92 of the Act, if it would otherwise be applicable, does not apply, if the person for whom (on whose behalf) residential building work is to be done by a contractor is a person who, by virtue of s3A of the Act, is a “developer who does residential building work”.
51 The words of s92 do not express any such qualification on the application of s92. Section 92 is not expressed to be subject to s96 or any other provision of the Act. Both ss(1) and ss(2) of s92 use the mandatory word “must”. A person breaching s92(1) or s92(2) is subject to a criminal sanction.
52 Sections 92 and 96 are directed to different classes of persons. Section 92 is directed to a person who proposes to do residential building work under a contract. Section 96 is directed to a person who does residential building work otherwise than under a contract or a developer who does residential building work (which, by reason of the definition in s3A, can include a person on whose behalf residential building work is being done by a contractor). The risks against which a contract of insurance required by s92 must insure (under s99) and the risks against which a contract of insurance required by s96 must insure (under s101) are not the same.
53 I do not consider that a builder who proposes to do residential building work under a contract for a client is relieved of his obligation to comply with s92 of the Act, because the person for whom he will be doing the building work is, by virtue of s3A, “a developer who does the work” and is accordingly required himself by s96 of the Act to take out a contract of insurance of a different kind.
54 In most cases where s92 of the Act applies, s96 will not apply. However, if a case falls within both s92 and s96, then the builder is required by s92 not to enter into a contract to do the proposed residential building work unless a contract of insurance complying with the Act, including s99, is in force and the person to whom s96 applies is obliged by s96 not to do the residential building work, unless a contract of insurance complying with the Act, including s101, is in force.
55 In the present case, the printed form of certificate of insurance and contract of insurance which was used, was a form capable of being used, whichever of ss92, 93 and 96 of the Act was applicable. However, it is clear from the information inserted in the Certificate of Insurance that the Contract of Insurance was obtained by the contractor Acosta for the benefit of the Joneses and their successors in title, in compliance with Acosta’s obligation under s92 of the Act.
56 If s92 of the Act applies, then it follows that the Contract of Insurance obtained by Acosta had to comply with the requirements of s99 and in particular had to insure the person on whose behalf the work was being done against the risks stated in s99, the Joneses were the persons on whose behalf the work was being done and cl 5.8 of the Contract of Insurance, purporting to exclude them from the benefit of the Contract of Insurance, was void pursuant to s103D of the Act.
57 So far as the appellant’s argument based on the regulation is concerned, in my opinion s92 and s99 of the Act required that the Joneses, as the persons on whose behalf the residential building work was being done, be insured against the risks stated in s99. It seems to me that the expression “a developer who does residential building work” in cl42(2)(a) of the Regulation is to be read subject to s92 and s99 of the Act and cl 42(1)(a) of the Regulation.
58 Accordingly, by virtue of cl 42(2)(a) of the Regulation a developer who does residential building work is not required to be a beneficiary under a contract of insurance required by s96 of the Act. However, if that person is a person on whose behalf residential building work is to be done by a contractor, then that person is required to be a beneficiary under the contract of insurance required by s92.
59 I dismiss the appeal and order that the appellant pay the respondent’s costs of the appeal.
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