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Taylor v Dexta Corporation Limited & Ors

Taylor v Dexta Corporation Limited & Ors

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Case Copied 10 November 2006 35 min read

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Reported Decision: (2006) 14 ANZ Insurance Cases 61-712

Court of Appeal

CITATION: Taylor v Dexta Corporation Limited and Others [2006] NSWCA 310

HEARING DATE(S): 21 June 2006

JUDGMENT DATE:
10 November 2006

JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Ipp JA at 74

DECISION: Appeal allowed with costs. (See orders at [73])

CATCHWORDS: INSURANCE – home warranty insurance required by the now repealed and replaced Home Building Act 1989 and the Home Building Regulations 1997 – construction of residential dwelling proceeded on assumption by all parties that such construction was covered by home warranty insurance – Insurer denied liability when building contract discovered to pre-date insurance policy – Whether policy, properly construed in those circumstances, covers appellant’s house construction.

LEGISLATION CITED: Home Building Act 1989 s18B, s18G, s92(1), s94, s99(1), s102(3) s103B,
Home Building Regulations 1997 42(1)(a)(i), 43(1), 43(3), 52, 58

CASES CITED: AMP Financial Planning Pty Ltd v CGU Insurance Limited (2004) 13 ANZ Insurance Cases 61-624
Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Love v Rowtor Steamship Co ltd [1916] 2 AC 527
Maggbury Pty Limited v Hafele Australia Pty Ltd (2001) 210 CLR 181
Prenn v Simmonds [1971] 1 WLR 1381
Royal Botanic Gardens and Domain Trust v South Sydney Council (2002) 186 ALR 289
Sabah Flour and Feedmills Sdn. Bhd. v Comfez Ltd [1988] 2 Lloyd’s Rep 18
Walker v Giles (1848) 6 CB 662
Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226

PARTIES: Susan Elizabeth TAYLOR (Appellant)
DEXTA CORPORATION LIMITED (ACN 084 487 712) (First Respondent)
ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 360) (Second Respondent)
BP GROUP PTY LIMITED (in liquidation) (ACN 094 230 869) (Third Respondent)

FILE NUMBER(S): CA 40847/05

COUNSEL: A S MARTIN, SC/ J OAKLEY (Appellant)
D CAMPBELL, SC/ D NEINBERGER (Respondents)

SOLICITORS: PriceWaterhouseCoopers Legal (Appellant)
Hunt & Hunt (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 55011/05

LOWER COURT JUDICIAL OFFICER: Nicholas J

LOWER COURT DATE OF DECISION: 29 September 2005

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 974

CA 40847/05
SC 55011/05

BEAZLEY JA
SANTOW JA
IPP JA
10 NOVEMBER 2006

Susan Elizabeth TAYLOR v DEXTA CORPORATION LIMITED and Others

Judgment

1 BEAZLEY JA: I have had the opportunity of reading in draft the reasons of Santow JA and Ipp JA. In my opinion, the insurance policy the construction of which is the issue raised for consideration in the appeal, contains inconsistent provisions. This is discussed by Santow JA at [66] and by Ipp JA in his reasons, with which I agree. The policy should be construed so as to give effect to that…

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: [2006] NSWCA 310
Decision Date: 10 November 2006

CaseChat Overview and Summary

The appellant, Taylor, brought proceedings against Dexta Corporation Limited and others concerning a home warranty insurance policy. The dispute arose when the insurer denied liability for the construction of the appellant's residential dwelling, asserting that the building contract predated the insurance policy. The matter was heard by the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the home warranty insurance policy, when properly construed in the circumstances, covered the appellant's house construction, despite the building contract having been entered into before the policy's commencement date. This involved an examination of the relevant provisions of the now repealed Home Building Act 1989 and the Home Building Regulations 1997, which mandated such insurance for residential building work.

The Court of Appeal allowed the appeal, finding that the policy should be construed to cover the construction. The reasoning focused on the parties' mutual assumption that the construction was covered by home warranty insurance, a requirement under the governing legislation. The Court determined that the insurer was estopped from denying liability or that the policy should be interpreted to give effect to the parties' intentions and the statutory purpose. Consequently, the Court ordered judgment for the appellant for $200,000 plus interest and awarded costs to the appellant.

Orders

Orders of the court

the appeal should be allowed with costs and propose orders as follows:

(1) Appeal allowed.

(2) Judgment for the plaintiff/appellant in the sum of $200,000 together with interest at Supreme Court rates.

(3) The respondents to pay the appellant's costs of the

proceedings below and of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Taylor v Dexta Corporation Limited and Others [2006] NSWCA 310
HEARING DATE(S):	21 June 2006
JUDGMENT DATE:	10 November 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Ipp JA at 74
DECISION:	Appeal allowed with costs. (See orders at [73])
CATCHWORDS:	INSURANCE – home warranty insurance required by the now repealed and replaced Home Building Act 1989 and the Home Building Regulations 1997 – construction of residential dwelling proceeded on assumption by all parties that such construction was covered by home warranty insurance – Insurer denied liability when building contract discovered to pre-date insurance policy – Whether policy, properly construed in those circumstances, covers appellant’s house construction.
LEGISLATION CITED:	Home Building Act 1989 s18B, s18G, s92(1), s94, s99(1), s102(3) s103B, Home Building Regulations 1997 42(1)(a)(i), 43(1), 43(3), 52, 58
CASES CITED:	AMP Financial Planning Pty Ltd v CGU Insurance Limited (2004) 13 ANZ Insurance Cases 61-624 Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Love v Rowtor Steamship Co ltd [1916] 2 AC 527 Maggbury Pty Limited v Hafele Australia Pty Ltd (2001) 210 CLR 181 Prenn v Simmonds [1971] 1 WLR 1381 Royal Botanic Gardens and Domain Trust v South Sydney Council (2002) 186 ALR 289 Sabah Flour and Feedmills Sdn. Bhd. v Comfez Ltd [1988] 2 Lloyd’s Rep 18 Walker v Giles (1848) 6 CB 662 Winks v W H Heck & Sons Pty Ltd [1986] 1 Qd R 226
PARTIES:	Susan Elizabeth TAYLOR (Appellant) DEXTA CORPORATION LIMITED (ACN 084 487 712) (First Respondent) ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 360) (Second Respondent) BP GROUP PTY LIMITED (in liquidation) (ACN 094 230 869) (Third Respondent)
FILE NUMBER(S):	CA 40847/05
COUNSEL:	A S MARTIN, SC/ J OAKLEY (Appellant) D CAMPBELL, SC/ D NEINBERGER (Respondents)
SOLICITORS:	PriceWaterhouseCoopers Legal (Appellant) Hunt & Hunt (Respondents)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 55011/05
LOWER COURT JUDICIAL OFFICER:	Nicholas J
LOWER COURT DATE OF DECISION:	29 September 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	[2005] NSWSC 974