The Owners - Strata Plan No. 81376 v Dyldam Developments Pty Ltd - [2025] NSWSC 438

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:
M A Ashhurst SC / D S Allen (Plaintiff)
M R Pesman SC (Third Defendant)
Solicitors:
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…

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: [2025] NSWSC 438
Decision Date: 08 May 2025

CaseChat Overview and Summary

The Owners of Strata Plan No. 81376 filed a claim against Dyldam Developments Pty Ltd, seeking compensation for defects in the construction of their residential property. The dispute centred on the interpretation and application of the Home Building Act 1989 (NSW), particularly the home warranty insurance policy, the timing of claims, and statutory provisions related to insurance claims. The case was heard in the Supreme Court of New South Wales.

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