Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: The Owners - Strata Plan No. 81376 v Dyldam Developments Pty Ltd [2025] NSWSC 438 Hearing dates: 28 April 2025; further written submissions 6 May 2025 Decision date: 08 May 2025 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Separate questions each answered “no”
Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – construction of home warranty insurance policy – separate questions – whether letter sent in 2012 constitutes a claim under the policy – whether letters sent in 2022 constitute claims within time under the policy – effect of s 92(5) of the Home Building Act – effect of long stop provision in s 103BC of the Home Building Act
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Home Building Act 1989 (NSW)
Home Building Amendment Act 2014 (NSW)
Insurance Contracts Act 1984 (Cth)
Cases Cited: Drummond v Gordian Runoff Limited ACN 052 179 647 [2024] NSWCA 239
Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 (2020) 104 NSWLR 19; [2020] NSWCA 327
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Texts Cited: D S L Kelly and M Ball, Kelly and Ball Principles of Insurance Law (2nd ed, 2001, Butterworths)
P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
New South Wales Legislative Assembly, Second Reading Speech, Home Building Amendment (Insurance) Bill 2002 (Hansard), 7 May 2002
New South Wales Legislative Assembly, Second Reading Speech, Home Building Amendment Bill 2011 (Hansard), 13 October 2011
Category: Procedural rulings Parties: The Owners – Strata Plan No. 81376 (Plaintiff)
Dyldam Developments Pty Limited (First Defendant)
Amaline Properties Pty Limited (Second Defendant)
Insurance Australia Limited t/as Lumley Insurance (Third Defendant)Representation: Counsel:
Solicitors:
M A Ashhurst SC / D S Allen (Plaintiff)
M R Pesman SC (Third Defendant)
Bannermans Lawyers (Plaintiff)
Mills Oakley (Third Defendant)
File Number(s): 2013/386026
JUDGMENT
-
The plaintiff (the “Owners Corporation”) is the owners corporation in respect of a 98 unit strata development in Parklea (the “Development”).
-
The first defendant, Dyldam Developments Pty Ltd (the “Builder”) built the Development on land then owned by the second defendant, Amaline Properties Pty Ltd (the “Developer”). There was, presumably, a building contract (the “Building Contract”) between the Builder and the Developer. It is not in evidence. It may have been oral. Both companies went into administration in 2022. The Builder is now subject to a deed of company arrangement. The Developer is in liquidation.
-
The only active party is the third defendant, Insurance Australia Limited trading as Lumley Australia (“the Insurer”).
-
On 29 March 2023, Darke J ordered that the Insurer be joined as third defendant on the basis that the date on which such joinder take effect “be determined at trial”.
-
On 6…
Keep reading for free
Create a free CaseChat account to read The Owners - Strata Plan No. 81376 v Dyldam Developments Pty... and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2025] NSWSC 438
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether a letter sent by the owners in 2012 constituted a valid claim under the policy and whether letters sent in 2022 were claims made within the policy's timeframe. Additionally, the court examined the implications of sections 92(5) and 103BC of the Home Building Act on the enforceability of the policy and the timing of claims. The court had to determine whether the statutory provisions rendered the policy terms inoperative or if they had any effect on the enforceability of the policy at all.
The court found that the 2012 letter did not constitute a claim under the policy as it was not a formal notice of claim but rather an informal communication. The court also concluded that the 2022 letters did not constitute valid claims because they were not sent within the policy's timeframe, and the statutory provisions did not render the policy terms inoperative. The court emphasised that the statutory provisions in sections 92(5) and 103BC of the Home Building Act did not affect the enforceability of the policy terms. The court dismissed the owners' claims, finding that the policy's terms and conditions were valid and enforceable.
The Supreme Court of New South Wales dismissed the claim brought by the Owners of Strata Plan No. 81376 against Dyldam Developments Pty Ltd. The court ordered that the owners pay the defendant's costs of the proceedings.
Orders
Orders of the court
Full text does not contain this section.
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.