Tudor Developments Pty Ltd v Makeig

The appeal concerned a dispute between Tudor Developments Pty Ltd (the appellant) and Makeig (the respondent) regarding a contract for the sale of land subject to residential building work. The central issue was whether the respondent could avoid the contract due to the appellant's failure to provide a certificate of insurance as required by section 96A(1) of the *Home Building Act 1989* (NSW). The Court of Appeal of New South Wales was required to determine whether general law principles of estoppel could operate to preclude the respondent from exercising the statutory power to avoid the contract under section 96A(3) of the Act.

The court considered the purpose of section 96A, which is to protect purchasers by ensuring they receive a certificate of insurance for residential building work. The legal issues revolved around the scope of the statutory power to avoid a contract for non-compliance with this requirement and whether this power could be qualified by equitable principles such as estoppel or election. The court also examined the relationship between section 96A(3) and section 103D of the *Home Building Act 1989* (NSW), as well as the legislative history of builders' insurance requirements in New South Wales.

In its reasoning, the court adopted a purposive approach to statutory interpretation, considering the legislative history and the consequences of non-compliance. It held that the statutory prohibition and the power to avoid the contract were designed for purchaser protection and that general law principles of estoppel could not operate to override or qualify the express statutory power granted by section 96A(3). The court found that allowing estoppel to preclude reliance on the statutory power would undermine the protective purpose of the legislation. The appeal was dismissed with costs.