Railway Land Holdings Pty Ltd (the Developer) engaged a builder to construct a residential development consisting of the construction of 15 strata lot dwellings and restoration of a heritage listed stationmaster's cottage (the Project). The Project was financed by Gardez Nominees Pty Ltd (the Financier), who took out a registered mortgage over the land as security. A policy of home warranty insurance was obtained from the NSW Self Insurance Corporation (the Insurer). A side deed was entered into between the Developer, the Financier and the Builder to give the Financier certain rights in connection with the building contract. The builder became insolvent during the Project and there were defects in the work carried out. The Developer defaulted under its mortgage and the Financier took possession of the land. The Financier lodged a claim with the Insurer. The Insurer denied liability. This case involves the Financier contesting the Insurer's denial of liability: Gardez Nominees Pty Ltd v NSW Self Insurance Corporation  NSWSC 532.
The central issue was whether the Home Building Act 1989 (NSW (the Act) gives a mortgagee in possession the entitlement to claim on a policy of home warranty insurance. It was heard as a separate question, the Court looking at five key issues. All questions were answered in the negative, with the answers to questions 1 and 2 determining that the Financier had no entitlement to claim under the policy of home warranty insurance, either as a successor in title or a non-contracting owner.
1. Was the Financier, as a mortgagee in possession, the Developer's successor in title?
The Court noted that the meaning of the term 'successor in title' depends on the context. In this case, the entitlement of the Financier related to sections 18D(1) and 99(1)(b) of the Act. Under these sections, the mechanism for transmission of the warranties and insurance is transmission of the owner's title. Under the Real Property Act, a mortgage is a security but is not a transfer of the land mortgaged. The Financier has the ability to take possession and take rents and profits that flow from this, however this is statutory security interest, and does not bring about succession in title.
2. Was the Financier, as a mortgagee in possession, capable of becoming a non-contracting owner?
An owner of land who was not a party to the contract will have the same rights under the statutory warranties and the same rights under the policy of home warranty insurance as the owner who was a party to the contract - sections 3(1), 18D(1)A) and 99(2A). However, it was held that a non-contracting owner refers to the state of affairs at the time the contract was entered into, not subsequently.
3. If the Financier is a non-contracting owner can it claim against the Insurer for work done prior to it becoming a mortgagee in possession?
This was held not to arise (see issue 2), however even if the Financier was a non-contracting owner, it would not have had the right to make a claim itself, rather, it would have had the benefit of being able to pass the benefit of the statutory warranties and the benefit of the policy of home warranty insurance to subsequent owners.
4. Was the Financier a person on whose behalf work was done pursuant to the side deed or the building contract, and therefore on becoming a mortgagee in possession, a developer in relation to the work done prior to it becoming a mortgagee in possession?
The Insurer argued that the side deed meant that the Financier was a developer under sections 3A(1) and (2), as it was a corporation on whose behalf the residential building work was done. The Financier argued that it was not a contracting party to the building contract, and the side deed did not make it one. The Court adopted the Financier's reasoning, finding that the side deed provided a mechanism for the Financier to realise its security, and that it was clear that the Financier was not a party to the building contract.
5. Was the Financier, by virtue of becoming a mortgagee in possession, deemed to be a developer in relation to the work done prior to possession?
Section 3A(1A) of the Act provides that the owner of the land will be deemed to be the developer in certain circumstances. The Financier argued that that it would be considered a developer only from when it had the status of an owner. In contrast, the Insurer argued that the section operates to deem work done before the owner acquired the status as work done its behalf. The Court held that the words of the section do not imply any retrospective operation. The legislative intention was not to make subsequent owners liable for prior work completed.
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