Walter Construction Group v FTAC; FTAC v Owners S/P 43551

The case involved appeals to the Court of Appeal of New South Wales concerning the interpretation of a statutory insurance scheme under the *Building Services Corporation Act 1989* (now the *Home Building Act 1996*) and its associated regulations. The primary dispute revolved around whether the administrator of the scheme, the Fair Trading Administration Corporation ("FTAC"), could revoke its earlier approval of a payment. This issue arose after a significant delay and a belated contention that the building defects in question did not fall within a specific clause of the regulations, a point not previously raised before the Consumer Trader and Tenancy Tribunal or on a prior appeal to the Supreme Court.

The court was required to determine several key legal issues. These included the proper construction of the statutory insurance scheme and the *Building Services Corporation Regulation 1990*, specifically whether FTAC had the capacity to revoke its approval of payment after ten years and prior to the payment being made, considering clauses 9 and 10 of the Regulations. The court also considered whether FTAC, acting as a model litigant, had the capacity to settle disputed claims under sections 101(1) and 105(3) of the Act. Furthermore, the court examined whether a statutory interpretation leading to an oppressive or absurd result should be rejected if not compelled by the language of the statute, and whether indemnity costs could be awarded against a builder who was a party to only one of the parallel proceedings.

The Court of Appeal ultimately refused leave to appeal to both FTAC and Walter Construction Group. The judges reasoned that the belated contention regarding the nature of the defects was unlikely to succeed, particularly given the principles of *Anshun* estoppel. They found that the interpretation of the statutory scheme, when considered in its entirety and in light of the legislative purpose, did not support the revocation of the approval in the circumstances presented. The court also addressed the costs orders, directing FTAC and Walter to pay the opponent's costs for their respective applications for leave to appeal, with liberty for the opponent to apply for indemnity costs.