Vero Insurance Limited v The Owners of Strata Plan No. 69352

[2010] NSWDC 54

CITATION:	Vero Insurance Limited v The Owners of Strata Plan No. 69352 [2010] NSWDC 54
HEARING DATE(S):	21 April 2010
JUDGMENT DATE:	29 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. The plaintiff’s appeal is dismissed; 2. The plaintiff is to pay the defendant’s costs of the appeal on the ordinary basis, unless otherwise ordered; 3. The proceedings are remitted to the Consumer, Trader and Tenancy Tribunal to make further orders, consistent with these findings, to finally determine the proceedings in the Tribunal; 4. Liberty to apply on 7 days notice if further orders are required.
CATCHWORDS:	ADMINISTRATIVE LAW – statutory appeal under s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 – decision by Consumer, Trader and Tenancy Tribunal concerning the amount of excess payable for an insurance claim made under a statutory policy of insurance issued pursuant to Home Building Act 1989 – $500 or $100,500 – whether only a factual question involved or whether the appeal involves a question with respect to a matter of law - INSURANCE LAW – construction of statutory policy of insurance issued under Home Building Act 1989.
LEGISLATION CITED:	Home Building Act 1989 Consumer, Trader and Tenancy Tribunal Act 2001
CASES CITED:	Australian Casualty Co Ltd v Federico [1986] HCA 32; (1986) 160 CLR 513 Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38 Grygiel v Baine & Ors [2005] NSWCA 218 HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 McCann v Switzerland insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 Owners of Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429; (2005) 62 NSWLR 169
PARTIES:	Vero Insurance Limited (Plaintiff) The Owners of Strata Plan No. 69352 (Defendant)
FILE NUMBER(S):	3736 of 2009
COUNSEL:	Mr T Lynch (Plaintiff) Ms E Olsson SC (Defendant)
SOLICITORS:	Mills Oakley (Plaintiff) Goldrick Farrell Mullan (Defendant)

JUDGMENT

Table of Contents

Nature of case and background	[1] – [6]
Subject matter of the appeal	[7] – [10]
Issues for determination	[11] – [16]
Evidence on the appeal	[17] – [22]
Decision of the Tribunal	[23] – [26]
Submissions of the parties	[27] – [36]
Defendant’s submissions	[28] – [30]
Plaintiff’s submissions	[31] – [33]
Defendant’s submissions in reply	[34] – [36]
Applicable legal principles	[37] – [50]
Legislation	[37] – [45]
Authorities	[46] – [51]
Jurisdiction	[47]
Interpretation	[48] – [51]
Consideration of whether a question arises with respect to a matter of law	[52] – [66]
Disposition	[67]
Orders	[68]

Nature of case and background

1. By summons, the plaintiff, Vero Insurance Ltd, seeks to appeal from a decision given on 22 July 2009 in proceedings numbered HB 08/49851 in the Home Building Division of the Consumer, Trader and Tenancy Tribunal [“CTTT”]. The parties to the Tribunal proceedings were Owners Corporation - Strata Plan 69352, as applicant below and defendant in this court, and Vero Insurance Ltd, as respondent below and plaintiff in this court.

2. The proceedings before the Tribunal involved a dispute concerning the amount of excess payable by the defendant on an insurance claim made on a statutory policy of insurance issued by the plaintiff under the Home Building Act 1989 in respect of the common property of premises located at 809 to 811 Pacific Highway, Chatswood, NSW.

3. The dispute arose from a decision by the plaintiff insurer, on 27 August 2008, to refuse an insurance claim made by the defendant owners corporation in the amount of $85,137.50. The claim concerned defects relating to common property on the premises, comprising air-conditioning, stairway pressurisation and fire safety issues.

4. The matter at issue in the primary proceedings before the Tribunal concerned the determination of an agreed preliminary question of whether, on a construction of the policy, the excess payable on the claim by the defendant owners corporation was in the sum of $500 or in the sum of $100,500.

5. The Tribunal determined the preliminary question in favour of the defendant owners corporation and decided that the amount of excess payable for the claim was $500.

6. Vero Insurance Ltd seeks to appeal to this court to have the decision of the Tribunal varied with an order to the effect that the defendant owners corporation should have to pay an excess of $100,500, an amount that exceeded the quantum of the claim made on the policy.

Subject matter of the appeal

7. The Tribunal was asked to determine a preliminary question which was identified by the parties in the following terms:

“What is the amount of excess due in relation to the matters the subject of these proceedings.”

8. The context of that question was that the defendant owners corporation had lodged an insurance claim form with the plaintiff insurer regarding home warranty insurance concerning building defects affecting the common property of the premises.

9. The plaintiff insurer took the view that the owners corporation had no relevant insurable interest in respect of common property issues. The plaintiff insurer regarded the claim as effectively being 201 claims made by 201 individual owners on 201 individual policies. That stance resulted in the plaintiff insurer’s demand for payment of a total excess amount of $100,500 in respect of 201 policies, rather than payment of a single excess of $500 payable under a single policy, as was contended by the defendant owners corporation.

10. The Tribunal determined the question for decision in favour of the defendant owners corporation and found that only the amount $500 was payable as the applicable excess on the claim.

Issues for determination

11. An appeal from a decision of the Tribunal to this court is confined to appeals concerning decisions on a question with respect to a matter of law : s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001. [“CTT Act”].

12. The plaintiff insurer is a party dissatisfied with the decision of the Tribunal. In the summons it claimed that the decision of the Tribunal was erroneous and involved two questions with respect to matters of law within the meaning of s 67(1) of the CTTT Act.

13. The first contended error was a claimed failure on the part of the Tribunal to determine and identify the policy or policies of insurance on which the claim was made, and, consequently, the plaintiff insurer claims the Tribunal failed to decide that a claim had been made on each of what is now claimed to have been 201 individual statutory policies issued under the Home Building Act 1989 and related regulations (“The policy question”).

14. The second contended error in the decision of the Tribunal was a claimed misconstruction of Clause 2 of each of the claimed 201 policies, erroneously resulting in only one $500 excess being determined to be payable, rather than 201 such $500 excesses, totalling $100,500 (“The construction question”).

15. As filed, the ultimate question to be decided in the appeal was whether the policy question and/or the construction question were decisions on questions with respect to matters of law.

16. In the course of making submissions during the hearing of the appeal, the plaintiff insurer refined these contended errors into a single formulated issue to assert that the Tribunal erred in concluding that a claim by the owners corporation was a claim in its own right without calling on the several insurances related to the 201 individual strata lot owners in the building. No objection was taken to this reformulation.

Evidence on the appeal

17. The plaintiff insurer read the affidavit of the plaintiff’s solicitor, Mr Banjo Stanton, sworn on 3 September 2009. That affidavit relevantly had annexed to it:

(a) The decision of the Tribunal;

(b) The transcript of the proceedings;

(c) The Joint Statement of Agreed Facts and annexed documents that were presented to the Tribunal for the purpose of deciding the preliminary issue;

(d) The submissions the respective parties made to the Tribunal.

18. The Joint Statement of Agreed Facts was in the following terms:

“1. On or about 12 February 2001 the Respondent issued home warranty insurance in respect of 201 dwellings that are now part of the Applicant Strata Plan.

2. Annexure “ A ” hereto is a copy of one of the 201 Certificates of Insurance issued by the Respondent. The other 200 Certificates of Insurance issued are identical except for the notations of the referable Unit Numbers and Certificate Numbers.

3. Annexure “ B ” hereto is a copy of the standard policy wording applicable to the insurance issued referred to above.

4. The Applicant has claimed upon the insurance issued by the Respondent in relation to alleged common property building defects. The amount so claimed is $85,137.50 not including GST.”

19. The Statement of Agreed Facts had annexed to it as Annexure “A”, a sample, a copy of Home Owners and Warranty Certificate of Insurance. That sample certificate was numbered 160109 and was dated 12 February 2001. It was stated to have been issued by Royal & Sun Alliance Insurance Australia, to Meriton Apartments in respect of one of the 201 strata units in the building. I infer that Royal & Sun Alliance was the predecessor to the plaintiff insurer.

20. Also annexed as Annexure “B” was an extract of the standard statutory policy wording and definitions approved by the Minister and applicable to the policy in question. It appears that the full policy and any schedules that might have been annexed to the full policy were not tendered in the Tribunal proceedings.

21. Significantly, absent from the evidence before the Tribunal, was any definitive factual evidence that informed the Tribunal as to whether there was a single master policy with 201 related certificates of insurance issued under it, or 201 separate policies of insurance with the 201 identifiable and concomitant certificates of insurance.

22. It is plain that the Statement of Agreed Facts that was tendered in evidence in the Tribunal was carefully worded, and referred to the question of insurance as a generic entity rather than identifying one or more individual policies of insurance. I consider this to be a matter of some significance.

Decision of the Tribunal

23. In the Tribunal the parties proceeded on the basis that the question for decision involved construction of the policy of insurance in the context of Part 6 of the Home Building Act 1989 and related regulations.

24. It was common ground that the owners corporation had no certificate of insurance and that the claim on the insurance concerned the common property that was vested in the owners corporation.

25. The Tribunal proceeded on the basis that although the owners corporation did not have a certificate of insurance, its claim was made on behalf of the individual owners. The Tribunal declined to conceptualise these circumstances as multiple claims.

26. The decision of the Tribunal concluded as follows:

“I have considered the argument by the respondent that because an excess of $500.00 represents a small amount for each lot owner ($2.49) this is an absurdly small amount and provides no disincentive for making minor and frivolous claims. However, as already indicated, it is the absolute quantum of the claim rather than what the costs would be to each lot owner if it is not met which the issue is (sic).

The respondents’ contention would lead to other absurdities and inconsistencies. It would, for example, permit a claim by a lot owner for $800.00 for minor defects to a kitchen cupboard in a lot, while a claim in respect of a $100,000.00 defect in common property would not be met.

As stated, the object of a provision for excess is the avoidance of minor or frivolous claims, having regard to the costs of assessment and processing of the claim by the insurer.

For the above reasons I determine that the excess payable by the owners corporation is the first $500.00 of the whole claim of $85,137.50.”

Submissions of the parties

27. It was common ground between the parties that the central issue in the appeal involved the proper construction of the statutory policy against the background of the legislation under which the policy had been issued.

Defendant’s submissions

28. On behalf the defendant owners corporation, Ms Olsson SC submitted that the plaintiff insurer has failed to identify a question with respect to a matter of law arising out of the decision of the Tribunal. Ms Olsson SC submitted that the decision of the Tribunal Member made clear his approach to the relevant principles and legislation, and the application of those principles and legislation to the policy in question, such that no relevant question of law has been demonstrated to have arisen from the decision of the Tribunal.

29. Simply put, the substance of the submissions made by Ms Olsson SC was that it was open to the Tribunal to find that there had been a single claim made under a single policy of insurance. It follows that there was no evidence of multiple policies. Ms Olsson SC also submitted that the defendant owners corporation was not bound by the insurer’s internal decision to characterise the claim as having been made under multiple policies, and therefore, the insurer’s attempt to impose aggregate excesses in the total sum of $100,500 was factually inappropriate and wrong in law. She submitted that the finding of the Tribunal to that effect, was correct.

30. In the result, Ms Olsson SC submitted that there was no basis in law for the Tribunal to have acceded to the insurer’s submission. Consequently, she argued that there was no error demonstrated in the decision of the Tribunal on a question with respect to a matter of law.

Plaintiff’s submissions

31. On behalf of the plaintiff insurer, Mr Lynch argued that since the owners corporation had no insurable interest in the property, it could therefore not suffer a relevant loss. It was contended that as a result, a claim could therefore only arise on policies held in the names of individual lot or unit owners, according to the statutory scheme under the Home Building Act 1989. Mr Lynch sought to develop this argument by asserting that under the statutory scheme of insurance, there could not be just one claim in the circumstances, and therefore there could not be only one excess payable.

32. Mr Lynch submitted that under the statutory scheme, for the policy to apply to the owners corporation, it had to be shown that the owners corporation had a policy in respect of the dwelling for which cover was issued in respect of which a claim could be made. This argument was dependent upon the construction of the Home Building Act 1989 (“HB Act”) and regulations made under the Act. He submitted that in context, the notion of a claim in this context had a particular statutory construction under section 102(6) of the HB Act and should be read in accordance with s 102C of the HB Act. He submitted that these matters involved questions with respect to matters of law and did not involve matters of fact.

33. Mr Lynch submitted that the decision of the Tribunal failed to understand the import of the statutory scheme under which the claim arose, and should have concluded that there was no insurance available for the benefit of the owners corporation. He submitted that this should result in a finding that there was no insurance available to support a claim to be made by the owners corporation other than through a series of individual claims made through the separate policies held by individual unit holders, thus requiring 201 lots of $500 excess to be paid. In this regard, he submitted that the Tribunal misdirected itself in its approach to the construction of the circumstances as not involving multiple claims under a policy of insurance issued pursuant to Part 6 of the HB Act, such that an error arose involving a question with respect to a matter of law.

Defendant’s submissions in reply

34. In reply, Ms Olsson SC submitted that the commercial considerations applicable to the circumstances, including the unique form of agency involving the owners corporation, meant that only the body corporate could deal with the issues that arose concerning problems with the common property relying on Owners of Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429; (2005) 62 NSWLR 169.

35. In this regard Ms Olsson SC submitted that the title to the common property was vested in the owners corporation and that the owners corporation was acting in a representative capacity for the individual lot owners. Accordingly, she submitted that for the purpose of the home warranty scheme, the owners corporation was entitled to make a claim on the insurer in respect of the common property.

36. In reply, Ms Olsson SC also pointed out that the elaborate set of arguments put forward by the plaintiff insurer in these proceedings, and which related to points of construction, did not represent the basis upon which the plaintiff insurer had refused to pay the claim. She pointed out that the basis of such refusal was simply grounded upon the notion that whereas the owners corporation made a single claim, which called for the payment of an excess of $500 on the policy, the insurer characterised the claim as comprising 201 claims, which called for the payment of an excess of $100,500.

Applicable legal principles

Legislation

37. Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 enables a party dissatisfied with the decision of the Tribunal to appeal to the District Court. Any such appeal can only be from a decision with respect to a matter of law: s 67(1) of the CTTT Act. The reference to “a matter of law” in s 67(1) includes a reference to a matter relating to the jurisdiction of the Tribunal : s 67(8) of the CTTT Act.

38. The HB Act and the Home Building Regulation 1997 (“HB Reg”) provide a statutory scheme for Home Owners Warranty Insurance.

39. The terms of any contract of insurance must be in accordance with the prescribed requirements : s 99 HB Act. The contract of insurance issued under these provisions must provide minimum cover for dwellings : s 102(3) HB Act. The excess on each claim is not to exceed $500 as specified in the contract : s 102(6) HB Act.

40. The HB Act does no define common property. “Dwelling” is defined as including a building or portions of a building that is designed, constructed or adopted for use as a dwelling and does not include portions of a building declared to have been excluded by regulation : s 3(1) HB Act.

41. The regulations declare common property as part of a dwelling in multiple dwelling buildings : reg 5 HB Reg.

42. The regulations provide for divisibility of insurance cover under a contract of insurance issued under the HB Act may be calculated by dividing the amount of the claim paid by the insurer in relation to common property of the building by the number of dwellings in the building : reg 46 HB Reg.

43. The provisions of the HB Act and the regulations as they relate to a strata scheme operate in conjunction with the Strata Schemes (Freehold Development) Act 1973 (“SS(FD) Act”) and the Strata Schemes Management Act 1996 (“SSM Act”).

44. Under that scheme, common property is defined as being so much of the property that does not comprise a lot : s 5 SS(FD) Act.

45. “Lot” is almost inscrutably defined by s 5 of the SS(FD) Act as:

“ lot means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.”

Relevant authorities

46. In the paragraphs that follow, I set out the relevant authorities as to jurisdiction and interpretation.

Jurisdiction for the appeal

47. It is well settled that the scope of an appeal from the CTTT to this court is limited to matters of law : HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292. It is also well settled that the words “with respect to a matter of law” in s 67(1) of the CTTT Act should not be given an unduly wide construction : Grygiel v Baine & Ors [2005] NSWCA 218 per Basten JA at [26]. It has recently been authoritatively reiterated that an appeal under s 67(1) of the CTTT Act is limited to a “decision” of “a question” by the Tribunal “with respect to a matter of law” : Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38 per Basten JA at [12].

Principles of interpretation

48. The principles governing the construction of policies of insurance are well settled. Even in cases of policies of insurance required by statute, the approach to interpretation requires recognition of the commercial contract between the parties and requires a businesslike interpretation, including the object sought to be secured and the language used : McCann v Switzerland insurance Australia Ltd [2000] HCA 65; (2000) 203 CLR 579 per Gleeson CJ at [22].

49. Policies of insurance should be interpreted liberally, in favour of the assured : Australian Casualty Co Ltd v Federico [1986] HCA 32; (1986) 160 CLR 513 per Gibb CJ at [6]; p 520.

50. The legislative provisions in question, where relevant, should be given a purposive interpretation to achieve the benefit intended by the legislation.

51. In the paragraphs that follow I set out my consideration of the matters raised by the grounds of appeal.

Consideration of whether a question arises with respect to a matter of law

52. In my view, in this appeal the plaintiff insurer has failed to demonstrate that the decision of the Tribunal has raised a question with respect to a matter of law. In my view, the pivotal matter raised by the plaintiff insurer involved a matter of fact, not law. The inevitable consequence of this conclusion is that the appeal must fail : s 67(1) CTTT Act.

53. It is clear from the decision of the Tribunal, and from the evidence upon which that decision was based, that the Tribunal was concerned with determining the consequences of a single claim made on a single policy concerning defects on the common property of the building in question. In my view this was an exclusively factual question.

54. On that basis, I accept the submission made by Ms Olsson SC that it is somewhat tortuous for the plaintiff insurer to contend that a “claim” must, as a matter of law in the circumstances of this case, be a reference to a multiple of 201 claims, simply because the statutory scheme provides for individual certificates of insurance to be issued to individual lot owners within a strata development scheme.

55. In my view the flaw in the argument relied upon by the plaintiff insurer is that the existence of 201 certificates of insurance in respect of lots in the building must necessarily mean that there were 201 policies of insurance. The fundamental problem with the argument relied upon by the plaintiff insurer is that the evidence before the Tribunal did not include any contract schedules that would serve to support or justify a conclusion that there were multiple policies rather than a master policy. In these circumstances, it was open on the evidence before the Tribunal to conclude that only one amount of excess of $500 was payable on the single claim made by the owners corporation on a single policy of insurance. The legislation referred to by the plaintiff insurer does not compel a contrary view.

56. An examination of the evidence and the relevant statutory provisions do not support the position advanced by the plaintiff insurer.

57. It is appropriate to consider the terms of Annexure A at Tab 3 of the affidavit of Mr Stanton. That annexure consists of a Homeowners Warranty Certificate of Insurance issued under s 92 of the HB Act.

58. That certificate refers to “A contract of insurance” having been issued under s 92 of the Act by Royal & Sun Alliance Insurance. The certificate further states that the nominated agents were arranging “the insurance policy as agents of the insurer”. The certificate also refers to the certificate being in respect of a “multi-unit” development. The certificate also identified the particular unit number as a representative sample of what were obviously 201 certificates issued for the particular building as was required by the legislation : s 96(2A) HB Act. The certificate also referred to “the conditions of the insurance contract”. It is significant to observe that the reference to contract is in the singular, which the Tribunal obviously construed, correctly, in my view, that there was a single contract of insurance for all the lots but with multiple certificates. None of these provisions in the certificate made reference to multiple insurance policies. The Tribunal obviously decided that all these references related to a single policy of insurance. In my view that interpretation arises on a consideration of the ordinary and natural meaning of the words used in the documents before the Tribunal and represents a literal interpretation in favour of the assured : Federico. In my view that interpretation was open on the evidence.

59. The terms of Annexure B to the affidavit of Mr Stanton, which comprised selective portions of the Homeowners Warranty Policy of Insurance, made reference to a “job specific owner policy”. The reference to a policy was singular and not plural. That policy was required to be in the standard terms as was provided by statute. Whilst the policy relevantly defined a number of terms, it did not relevantly define what constituted a claim. As a consequence, I consider “claim” should be given its ordinary meaning.

60. In argument, Mr Lynch relied upon s 102(6) of the HB Act, however I consider that provision is of no assistance to the plaintiff insurer. That provision refers to a single contract of insurance and an excess amount for each single claim. There is nothing in the terms of that section which requires that in the circumstances it must be inferred that there were multiple policies, and thus multiple claims.

61. In support of his argument, Mr Lynch also relied upon s 102(3) of the HB Act, which provides for a contract of insurance to have cover of not less than $200,000 in relation to each dwelling to which the insurance relates. In my view that provision in the statutory scheme is of no assistance to the argument asserting that there were 201 policies of insurance, as was contended. In my view the reference in s 102(3) to “contract” in the singular, in the context of 201 certificates of insurance each insuring for $200,000, is not inconsistent with 201 certificates having been issued under a single policy of insurance. Such a circumstance would make perfect commercial and administrative sense, in the context of the strata scheme. It is also consistent with a single claim having been made by the owners corporation on behalf of the individual lot owners affected. In my view this conclusion is consistent with a purposive and beneficial interpretative approach.

62. In this regard, I accept the submission made by Ms Olsson SC that it is clear the owners corporation was able to make a claim in its own right, just as it is the right to bring proceedings against the insurer, pursuant to the legal standing it had as a special or unique form of agency, to pursue or protect the rights and interests of any registered proprietor of a lot within the strata development : Owners of Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429; (2004) 62 NSWLR 181 per Spigelman CJ at [49];pp 180-181.

63. It follows that the owners corporation was not bound by the internal decision of the insurer to treat the one lodged claim as being 201 claims for its own purposes. The plaintiff insurer’s contention to the contrary does not accord with a businesslike interpretation of the contract. The insurer’s contention to the contrary was based on the legislative policy of the statutory requirement for the payment of an excess intended to discourage frivolous claims. In context, the unbusinesslike character of that submission is revealed at once by recognizing that on its face, a claim for defects involving $85,137.50, is not a frivolous claim on any stretched use of language.

64. Accordingly, in my view, on the evidence before the Tribunal it was open to conclude that there was only one claim made against one policy. There was no evidence before the Tribunal that would reasonably support an argument that there were 201 policies issued in respect of which 201 claims were made so as to require that 201 multiples of amounts for excess of $500 had to be paid in respect of the claim, amounting to a total of $100,500.

65. The question of whether or not there was one policy or multiple policies, being 201 in number, was exclusively a question of fact open to be determined by the Tribunal. The Tribunal determined that factual question by deciding that there was only one policy and therefore the single claim which emerged under the policy attracted an excess payment of $500 and not the sum of $100,500 representing $500 multiples for 201 individual claims. In my view this did not raise questions with respect to matters of law.

66. The contrary arguments raised by the plaintiff insurer concerning this proposition depend for their validity on a construction of the statutory scheme so as to impute the existence of multiple policies. In my view the Tribunal was not required to construe the statutory scheme in the manner so contended. Instead, it was asked to determine the appropriate amount of excess due in relation to the matters that were the subject of evidence in the proceedings. Those matters related to a single claim. In my view the Tribunal correctly decided that only one lot of excess of $500 was required to be paid by the defendant owners corporation under the policy in respect of the single claim that had been made. That finding was open on the evidence, and in my view, no relevant question with respect to a matter of law arises for decision in this appeal.

Disposition

67. I have determined that the appeal does not raise a question with respect to a matter of law. Accordingly, the appeal, and therefore the summons, should be dismissed with the costs of the summons to be paid by the plaintiff insurer. As the decision of the Tribunal dealt only with the preliminary question identified by the parties, it is necessary for the matter to be remitted back to the Tribunal for consequential orders to be made to finalise those proceedings. I anticipate that those orders would be made by consent to reflect the result of its appeal.

Orders

68. I make the following orders:

(a) The plaintiff’s appeal is dismissed;

(b) The plaintiff is to pay the defendant’s costs of the appeal on the ordinary basis, unless otherwise ordered;

(c) The proceedings are remitted to the Consumer, Trader and Tenancy Tribunal to make further orders, consistent with these findings, to finally determine the proceedings in the Tribunal;

(d) Liberty to apply on 7 days notice if further orders are required.