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The Home Owners' Warranty policies issued by insurers in NSW sometimes have a clause restricting the right of home-owners to claim under the policy except in the event of the builder's "disappearance, death or insolvency". A barrister who interpreted this clause and other clauses after reaching an out of court settlement with the insurer was later found by the Administrative Decisions Tribunal to have been guilty of unsatisfactory professional conduct. The case indicates that a barrister may be found guilty of unsatisfactory professional conduct without negligence having been shown. On the facts, the builder, a corporation, whose sole director announced he had cancer and would not participate further in current proceedings before the CTTT |
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seems to have been held not to have "disappeared". NSW Bar Association v Bland [2010] NSWADT 34. The issue then remains, is it possible for a corporation to die or to disappear? Or must a policy holder - under the ameliorative regime of the Home Building Act - be compelled to incur the non-claimable costs of making a corporate builder insolvent ? [4 February 2010] |
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