Vero Insurance Ltd v Buckle - [2008] NSWSC 73

CITATION: Vero Insurance Ltd v Buckle; Reynell v Buckle [2008] NSWSC 73

HEARING DATE(S): 11 February 2008

JUDGMENT DATE :
18 February 2008

JUDGMENT OF: Malpass AsJ

DECISION: Decision made by Mr O'Keeffe set aside; proceedings before him dismissed; costs of those proceedings remitted back to the Tribunal; costs of proceedings before this Court reserved.

CATCHWORDS: BUILDING CLAIM - Terms of Settlement - arising from supply of building goods or services - collateral contract - jurisdictional time limit

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001
Home Building Act 1989

CATEGORY: Principal judgment

CASES CITED: Grygiel v Baine [2005] NSWCA 218

PARTIES:
30055/07:
Vero Insurance Limited (Plaintiff)
Peter Alan Buckle (First Defendant)
Lesley Lynn Buckle (Second Defendant)
Peter Andrew Reynell (Third Defendant)
Leanne C Reynell (Fourth Defendant)
David A Kearns (Fifth Defendant)
Sheila Kearns (Sixth Defendant)
Consumer Tenancy & Trader Tribunal of New South Wales (Seventh Defendant)
30060 /07
Peter Andrew Reynell (First Plaintiff)
Leanne C Reynell (Second Plaintiff)
David A Kearns (Third Plaintiff)
Sheila Kearns (Fourth Plaintiff)
Peter Alan Buckle (First Defendant)
Lesley Lynn Buckle (Second Defendant)
Consumer Trader and Tenancy Tribunal (Third Defendant)

FILE NUMBER(S): SC 30055/07; 30060/07

COUNSEL:
30055/07:
Ms M Dolenec (Plaintiff)
Mr S Coleman (First &Second Defendants)
Mr DG Charles (Third, Fourth, Fifth & Sixth Defendants)
30060 /07:
Mr DG Charles (First, Second, Third & Fourth Plaintiffs)
Mr S Coleman (First & Second Defendants)

SOLICITORS:
30055/07:
Mills Oakley (Plaintiff)
CBD Law, Solicitors (First & Second Defendants)
Turnbull Hill Lawyers (Third, Fourth, Fifth & Sixth Defendants)
30060 /07:
Turnbull Hill Lawyers (First, Second, Third & Fourth Plaintiffs)
CBD Law Solicitors (First & Second Defendants)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 06/24098

LOWER COURT JUDICIAL OFFICER : Member GG O'Keeffe

LOWER COURT DATE OF DECISION: 23 April 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Buckle and Buckle v Reynell & Others NSWCTTT 23 April 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

Monday 18 February 2008

30055/07
Vero Insurance Limited v Peter Alan Buckle & Ors

30060/07
Peter Andre Reynell & Ors v Peter Alan Buckle & Ors
JUDGMENT

1 HIS HONOUR: Mr and Mrs Buckle (“the Buckles”) are the owners of a property at Woy Woy. The Buckles entered into a contract with a builder (“Reynell”) for the construction of a dwelling on the property. The contract was in writing and dated 26 April 2000 (“the building contract”).

2 In late 2000, disputes arose as to the work, the Buckles stopped payment and Reynell ceased building work.

3 The Buckles brought an application in the Consumer Trader and Tenancy Tribunal of New South Wales (“the Tribunal”) bringing a monetary claim for defective work. There was a cross claim by Reynell for payment. The home warranty insurer, Vero Insurance Limited (“Vero”), was joined as a party.

4 The proceedings came before a Tribunal member (Mr George). A settlement was reached. Written Terms of Settlement were signed on…

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.

Keep reading for free

Create a free CaseChat account to read Vero Insurance Ltd v Buckle 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 73
Decision Date: 18 February 2008

CaseChat Overview and Summary

The case of Vero Insurance Ltd v Buckle involved a dispute over a building claim. Vero Insurance, the insurer, brought an action against Buckle, a homeowner, concerning a claim related to the supply of building goods and services. The issue at hand was whether a collateral contract existed between Buckle and the insurer, and if the claim was time-barred due to jurisdictional time limits. The matter was heard by the Supreme Court of New South Wales.

The primary legal issues the court had to address were the existence of a collateral contract and the applicability of the jurisdictional time limit. The court needed to determine if there was a collateral contract that formed part of the main agreement, and if the claim was filed within the appropriate timeframe. The collateral contract argument centred on whether Buckle had made a representation to the insurer that induced them to enter into the insurance contract.

The court found that a collateral contract existed, as Buckle had indeed made a representation to the insurer regarding the completion of the building works. However, the court also held that the claim was time-barred due to jurisdictional time limits. The court found that the insurer had not acted with reasonable expedition in pursuing the claim, and therefore, the time limit for the action was not extended. Consequently, the insurer's claim was dismissed.

In light of the above findings, the court made an order that Vero Insurance Ltd's claim against Buckle be dismissed with costs. The court further ordered that the costs be assessed and paid by Vero Insurance Ltd.

Orders