New South Wales Consolidated Acts

HOME BUILDING ACT 1989 - SECT 103I

103I Indemnity

(1) Subject to this Part, the State must indemnify any person:

(a) who is entitled to recover an amount under a contract of insurance entered into under Part 6 in connection with any matter, and

(b) who is covered by an insolvent insurer’s policy,

to the extent of the amount that the person is entitled to recover under that policy in connection with that matter.

(2) The following provisions apply to that indemnity:

(a) the builder to which the policy relates is not entitled to the indemnity,

(b) a developer to which the policy relates, or a company related, within the meaning of the Corporations Law , to a developer, is not entitled to the indemnity,

(c) the indemnity does not apply in connection with any matter that is covered by another contract of insurance that is not an insolvent insurer’s policy,

(d) the indemnity does not apply in connection with any matter if a claim has been made under an insolvent insurer’s policy in respect of the matter and payment in full has been received by the claimant or the matter has been otherwise settled,

(e) the indemnity does not apply in connection with any matter if:

(i) a claim in respect of the matter has been determined by the Tribunal or a court not to be a valid claim under an insolvent insurer’s policy, and

(ii) the claimant is not entitled to bring any further proceedings to appeal against or seek a review of that determination,

(f) unless the regulations otherwise provide, the indemnity does not apply in connection with any matter covered by an insolvent insurer’s policy issued by HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited if:

(i) in a case where section 92 or 93 required a person to be provided with a certificate of insurance evidencing the insolvent insurer’s policy-the certificate of insurance relating to the matter was provided to the person after 20 June 2001, or

(ii) in a case where an owner-builder obtained a certificate of insurance evidencing the insolvent insurer’s policy in order to comply with the requirements of section 95-the certificate of insurance relating to the matter was provided to the owner-builder after 15 March 2001, or

(iii) in a case where section 96 (1) required a person to ensure a contract of insurance was in force to enable the person to do residential building work-the certificate of insurance evidencing the insolvent insurer’s policy relating to the work was issued, or the work commenced, or both, after 20 June 2001,

(g) the indemnity does not apply in connection with any matter or other circumstance prescribed by the regulations.

(3) If a claim has been made under an insolvent insurer’s policy in connection with any matter and settlement has been reached or a determination has been made by the Tribunal or a court in respect of the claim:

(a) the amount for which an indemnity is provided by the State under this section in connection with that matter is the amount so agreed in the settlement or determined by the Tribunal or the court, and

(b) the amount for which an indemnity is provided by the State under this section in connection with that matter is reduced by any amount paid by the insolvent insurer or a liquidator of the insolvent insurer to the claimant in respect of the claim on the insolvent insurer’s policy.

Note: The person who is covered by the indemnity under this section is called the "beneficiary" in this Part (see section 103F).