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[2002] VCAT 1495
Victorian Civil and Administrative Tribunal
2002-12-12
Mr P
Original judgment source is linked above.
2. I reserve liberty to make application for costs.
3. I direct that this matter be re-listed on a convenient date.
1. On 23 July 2002 the member set this matter down for separate hearing "on a preliminary issue as to the interpretation of the insurance policy."
2. The Member did not identify at all what that issue in particular was, and this is not satisfactory from anyone's point of view.
3. The issue though, I find, concerns the meaning to be attached to the so-called "20% provision" referred to in para 5.5 of the Ministerial Order made under s135 of the Building Act 1993. This is in, its effect, incorporated into cl.(b) of the "Limits of Indemnity" of the HIH Insurance Home Warranty Policy.
4. This case arises under the House Contracts Guarantee (HIH) Act 2001. By s37 of the 1987 Principal Act, as amended by that Act, indemnity is provided for any person who has a claim under an HIH policy to the extent allowed under the policy.
5. As it happens, the very issue set aside by the member for separate hearing was considering only 2 months or so before by Senior Member Walker in Bulboa v Royal & Sun Alliance Insurance Aust Ltd [2002] VCAT 316. That decision was available at the time. To have a point re-argued only two months or so after it was decided by the Tribunal is a wasteful exercise. It is, moreover, an expensive exercise for all concerned including the Tribunal in the allocation of its resources. I consider I am not bound by the Senior Member's decision. But having to re-hear a matter only recently heard is not a practice to encourage. Otherwise, any decision, formally given, might be re-argued again, and again, before different members with differing results. It is all the more embarrassing when this happens only a short time, as in this case, after the pronouncement is given.
6. I have considered the reasoning in Bulboa and must say I am entirely in agreement with it. I follow the ruling in that case. I do not agree that "the more correct interpretation", as it was put, of the Ministerial Order and policy is "that the indemnity for completion costs may only be limited to 120% of the contract price, that it [sic] where completion costs exceed the total contract price by more than 20%" I reject that interpretation, and do so independently. The insurer's liability is in my view limited to 20% of the contract price. There is no ambiguity in this sense in the Ministerial Order. There is only some small difficulty of interpretation which is readily resolved.
7. That difficulty was readily resolved in Bulboa's case by the learned Senior Member. I follow his ruling, as I say. I refer also to the observations of the High Court in Johnson v American Home Insurance (1998) 72 ALJR 610 at 613-4 (quoted by Counsel for the Fund) that "[if] a settled meaning is demonstrated, given the nature of the insurance market and its function, courts will hesitate before substituting a meaning which is at odds with that which is settled by past decisions". As regards, moreover, the unfairness, it might be alleged, of some particular reading of the words in an insurance policy provision, the Court said this: "If, in these words, there is only one meaning, a court may not reject it simply because it regards the result as unfair or otherwise undesirable". In my view, in this case, the words in question are not ambiguous and have only one meaning and that is the meaning they were given in Bulboa's case.
10. I reserve liberty to make application for costs.
11. I direct that this matter be re-listed on a convenient date.
# Dore
Housing Guarantee Fund & Ors \[2002\] VCAT 1495
(1998) 72 ALJR 610