INSURANCE (POLICYHOLDERS PROTECTION) LEGISLATION AMENDMENT ACT 2001 - SCHEDULE 2

This legislation has been repealed.

INSURANCE (POLICYHOLDERS PROTECTION) LEGISLATION AMENDMENT ACT 2001 - SCHEDULE 2

SCHEDULE 2 – Amendment of Home Building Act 1989

(Section 4)

[1] Part 6A

Insert after Part 6:

Part 6A - Insolvent insurers

Division 1 - Preliminary

103F Interpretation

(1) In this Part:

"beneficiary" means a person covered by an indemnity from the State under Division 2.

"builder" means a contractor or supplier (within the meaning of Part 6), an owner-builder or person who does residential building work otherwise than under a contract.

"developer" has the same meaning as in Part 6.

"Guarantee Corporation" means the Building Insurers' Guarantee Corporation constituted under Division 3.

"insolvent insurer" means an insurer to whom:

(a) an order of the Treasurer in force under section 16A of the Insurance Protection Tax Act 2001 relates, or

(b) an order of the Minister in force under section 103G relates.

Note: See also section 16A (2) of the Insurance Protection Tax Act 2001 in relation to HIH companies.

"insolvent insurer's policy" means a contract of insurance, required under Part 6, that has been entered into by an insolvent insurer, whether before or after the insurer became an insolvent insurer.

"insurer" means an insurer approved by the Minister under section 103A of this Act (an "approved insurer") or a former approved insurer, but does not include an insolvent insurer.

"liquidator" includes a provisional liquidator.

(2) In this Part, a reference to a liquidator or to a provisional liquidator includes a reference to a liquidator or a provisional liquidator appointed outside New South Wales.

(3) So far as the legislative power of Parliament permits, the liquidator of an insolvent insurer has outside New South Wales the functions conferred or imposed on the liquidator by this Part, in addition to having those functions within New South Wales.

(4) This Part has effect despite any provisions of the Corporations (New South Wales) Act 1990 or of the applicable provisions (as defined in that Act) of the State.

103G Insolvent insurers If the Minister is satisfied that a liquidator or provisional liquidator has been appointed in respect of an insurer, or that an insurer has been dissolved, the Minister may with the approval of the Treasurer, by order published in the Gazette, declare that the insurer is an insolvent insurer for the purposes of this Part.

Note: "Declared insolvent insurers" under the Insurance Protection Tax Act 2001 are also insolvent insurers for the purposes of this Part. See the definition of "insolvent insurer" in section 103F of this Act.

103H Transitional--payments made by State before commencement of this Part Any payments made by the State in respect of an insolvent insurer's policy relating to any such insurer, any assignment given by a person to whom the payment was made and any other related action taken after 15 March 2001 and before the commencement of this Part are taken to have been made, given or taken under this Part.

Division 2 - Insurance claims indemnified by State

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).

103J Enforcement of indemnity provided by State The indemnity provided by the State under this Division may only be enforced by a claim made to, and proceedings taken against, the Guarantee Corporation.

103K Making claim under indemnity

(1) A claim by a beneficiary under the indemnity provided by this Division is to be made to the Guarantee Corporation in accordance with the procedures approved under this section.

(2) The claim may be made in respect of any matter whether or not a claim in respect of that matter has been made against an insolvent insurer or a liquidator of an insolvent insurer or any other person.

(3) The Guarantee Corporation may from time to time approve of procedures for the making, handling and resolution of claims.

(4) Without limiting subsection (3), the Guarantee Corporation may approve as part of those procedures:

(a) the requirement that a claim be made in a particular way, and

(b) the requirement that a claim be made within a particular time, and

(c) the requirement that the claimant provide particular information, and

(d) the requirement that the claimant verify any information by statutory declaration.

(5) A person must not make a statement in relation to the making of a claim under this Part that the person knows is false or misleading.

Maximum penalty (subsection (5)): 100 penalty units.

103L Payment of claims If the Guarantee Corporation accepts a claim by a beneficiary, the Guarantee Corporation must pay to the beneficiary (or a person nominated by the beneficiary) out of the Building Insurers' Guarantee Fund the amount assessed by the Guarantee Corporation as payable under the indemnity provided by this Division.

103M Assignment of rights

(1) Where the Guarantee Corporation pays an amount to a beneficiary (or a person nominated by a beneficiary) under the indemnity provided by this Division, the beneficiary is taken to have assigned the beneficiary's rights in respect of the matter covered by the indemnity to the Guarantee Corporation.

(2) The Guarantee Corporation may enforce the rights assigned to it under this section as if those rights had been personally assigned by the beneficiary.

(3) The regulations may make provision for or with respect to assignments of beneficiaries' rights under this section, including, but not limited to, provisions relating to:

(a) the nature and extent of the assignment, and

(b) the enforcement of the assignment by the Guarantee Corporation.

103N Guarantee Corporation may require builder to make payments or rectify work

(1) Subject to subsection (3), if a claim is made by a beneficiary under the indemnity provided by this Division in respect of incomplete or defective residential building work or the non-supply of a kit home or supply of a defective kit home, the Guarantee Corporation may give reasonable directions to the builder concerned in respect of:

(a) the completion of the building work or the rectification of the defective building work, or the supply of the kit home or the replacement of the defective kit home, or

(b) the payment by the builder to the Building Insurers' Guarantee Fund of any amount in respect of the completion of the building work or the rectification of the defective building work, or the supply of the kit home or the replacement of the defective kit home.

(2) Subject to subsection (3), if a claim is made by a beneficiary under the indemnity provided by this Division, the Guarantee Corporation may direct the builder concerned to pay to the Building Insurers' Guarantee Fund any amount paid out of the Fund on that claim.

(3) The Guarantee Corporation may only give a direction under subsection (1) or (2) to the extent that an insolvent insurer (if it was not insolvent) would be able to require that work or supply, or require a payment to the insurer by the builder, under the relevant insolvent insurer's policy.

(4) A builder must comply with a direction under subsection (1) or (2).

(5) The Guarantee Corporation may recover an amount to be paid by a builder under this section in any court of competent jurisdiction as a debt due to the State.

(6) A builder who fails to comply with a direction under subsection (1) or (2) is guilty of improper conduct.

103O Indemnity payments after insolvent insurer dissolved

(1) The indemnity provided by this Division continues despite the dissolution of the insolvent insurer.

(2) In that case, the provisions of this Part apply as if the insurer had not been dissolved.

Division 3 - Miscellaneous

103P Building Insurers' Guarantee Fund

(1) There is established a fund, to be known as the Building Insurers' Guarantee Fund, belonging to the Guarantee Corporation.

(2) The following is to be paid into the Fund:

(a) money required to be paid into the Fund out of the Policyholders Protection Fund in accordance with section 16D of the Insurance Protection Tax Act 2001 ,

(b) the interest and any other amounts from time to time accruing from the investment of the Fund,

(c) money recovered by the Guarantee Corporation under this Part, including money recovered by the Guarantee Corporation by the exercise of a beneficiary's rights assigned to the Guarantee Corporation under this Part,

(d) money borrowed for the purposes of the Fund.

(3) The following is to be paid from the Fund:

(a) money required to be paid from the Fund under Division 2,

(b) payments relating to the costs and expenses of the Guarantee Corporation incurred in or in connection with the exercise of its functions under this Part,

(c) money required to be paid from the Fund into the Policyholders Protection Fund in accordance with section 16F of the Insurance Protection Tax Act 2001 ,

(d) repayments of money borrowed for the purposes of the Fund.

(4) The Guarantee Corporation may invest money in the Fund which is not immediately required for the purposes of the Fund in such manner as may be authorised by the Public Authorities (Financial Arrangements) Act 1987 .

103Q Constitution of Guarantee Corporation

(1) There is constituted by this Act a body corporate with the corporate name of the Building Insurers' Guarantee Corporation.

(2) The Guarantee Corporation is, for the purposes of any Act, a statutory body representing the Crown.

(3) The seal of the Guarantee Corporation may be affixed to a document only:

(a) in the presence of the Minister or a person authorised by the Minister, and

(b) with an attestation by the signature of the Minister or that person of the fact of the affixing of the seal.

103R Minister to manage and control affairs of Guarantee Corporation

(1) The affairs of the Guarantee Corporation are to be managed and controlled by the Minister.

(2) Any act, matter or thing done in the name of, or on behalf of, the Guarantee Corporation by the Minister or the Director-General is taken to have been done by the Guarantee Corporation.

103S Functions of Guarantee Corporation

(1) The Guarantee Corporation has the following functions:

(a) to deal with and finalise claims under this Part on behalf of the State,

(b) to hold and manage, on behalf of the State, the Building Insurers' Guarantee Fund in accordance with this Act,

(c) any other function conferred or imposed on it by or under this or any other Act or law.

(2) The Guarantee Corporation may do all such things as are supplemental or incidental to the exercise of its functions.

(3) The Guarantee Corporation may appoint an insurer or other person as its agent or contractor for the purpose of exercising any or all of its functions under this Part.

103T Combined financial and other reporting by Guarantee Corporation and Department of Fair Trading The reports of the Guarantee Corporation and the Department of Fair Trading under the Public Finance and Audit Act 1983 , the Annual Reports (Statutory Bodies) Act 1984 and the Annual Reports (Departments) Act 1985 may be combined, but must include a separate report of the financial transactions and activities of the Guarantee Corporation.

103U Guarantee Corporation may enter into agreements and arrangements with liquidator of an insolvent insurer The Guarantee Corporation may:

(a) enter into agreements or arrangements on behalf of the State with, and

(b) on behalf of the State accept any assignment from,

any liquidator of an insolvent insurer or any other person for the purpose of the settling of any claim in respect of which an assignment was made under section 103M or for any other purpose relating to an indemnity under this Part.

103V Recovery of amounts under contracts or arrangements for re-insurance or co-insurance To the extent that any amounts are paid out of the Building Insurers' Guarantee Fund in respect of an indemnity under Division 2, the Guarantee Corporation is, where an insolvent insurer (if it had provided indemnity to that extent under a contract of insurance) would have been entitled to recover any sum under a contract or arrangement for re-insurance or co-insurance, entitled to the benefit of and may exercise the rights and powers of the insolvent insurer under that contract or arrangement so as to enable the Guarantee Corporation to recover from the re-insurer or co-insurer and pay into the Building Insurers' Guarantee Fund the amount due under that contract or arrangement.

103W Liquidator to notify Guarantee Corporation of claims The liquidator of an insolvent insurer must, on receiving any claim relating to an insolvent insurer's policy covered by the indemnity provided by Division 2, forward a copy of the claim to the Guarantee Corporation.

Maximum penalty: 20 penalty units.

103X Delivery of documents to Guarantee Corporation

(1) This section applies to the following persons:

(a) the liquidator of an insolvent insurer,

(b) any other person who holds documents relating to insolvent insurer's policies covered by the indemnity provided by Division 2 that the liquidator is entitled to possess (including documents the liquidator would be entitled to possess but for a lien).

(2) A person to whom this section applies must, whenever requested to do so by the Guarantee Corporation:

(a) deliver to the Guarantee Corporation copies of documents relating to insolvent insurer's policies covered by the indemnity provided by Division 2, and of all claims or judgments made in respect of any such policies in the person's possession, and

(b) supply to the Guarantee Corporation all information in the person's possession relating to any such policies or any such claims or judgments.

Maximum penalty: 20 penalty units.

103Y Inspection of documents by person authorised by Minister

(1) This section applies to the following persons:

(a) the liquidator of an insolvent insurer,

(b) a person who holds documents relating to insolvent insurer's policies covered by the indemnity provided by Division 2 that the liquidator is entitled to possess (including documents the liquidator would be entitled to possess but for a lien).

(2) A person to whom this section applies must, whenever requested to do so by a person authorised by the Minister, make any documents relating to insolvent insurer's policies covered by the indemnity provided by Division 2, and any claims or judgments made in respect of any such policies in the person's possession available for inspection by that authorised person.

Maximum penalty: 20 penalty units.

103Z Guarantee Corporation may take certain legal proceedings

(1) If:

(a) the liquidator of an insolvent insurer applies to any court for directions in relation to any particular matter arising under the winding up, or

(b) the exercise by the liquidator of an insolvent insurer of any of the liquidator's functions, whether under this Part or not, is challenged, reviewed or called into question in proceedings before the Tribunal or any court, or

(c) any other matter that concerns or may affect the operation of this Part is raised in proceedings before the Tribunal or any court,

the Guarantee Corporation may intervene at any stage of the proceedings before the Tribunal or that court, by counsel or agent, and the Guarantee Corporation thereupon becomes a party to, and has all the rights of a party to, those proceedings before the Tribunal or that court, including the right to appeal against any order, judgment or direction of the Tribunal or the court.

(2) In any case in which the Attorney General might take proceedings on the relation or on behalf of or for the benefit of a beneficiary who is (or who would but for the dissolution of the insolvent insurer be) entitled, under an insolvent insurer's policy, to be indemnified against a claim or judgment arising from or relating to the policy, being proceedings for or with respect to enforcing or securing the observance of any provision made by or under this Part, any Act or any rule of law, the Guarantee Corporation is taken to represent sufficiently the interests of the public and may take the proceedings in its own name.

103ZA Disputes regarding decisions of Guarantee Corporation

(1) The Tribunal has the same jurisdiction in relation to claims for indemnity under Division 2 as it has in relation to claims under contracts of insurance required to be entered into under Part 6.

(2) The regulations may make provision for or with respect to the application, with such modifications as may be provided by the regulations, of any of the provisions of this Act in relation to the dealing with or finalising of claims, the satisfying of judgments or the resolving of disputes regarding claims.

103ZB Recovery of amounts under guarantees or indemnities To the extent that any amounts are paid out of the Building Insurers' Guarantee Fund in respect of an indemnity under Division 2, the Guarantee Corporation is, where an insolvent insurer (if it had provided indemnity to that extent under an insolvent insurer's policy) would have been entitled to recover any sum under a guarantee or indemnity given by a builder or any other person, entitled to the benefit of and may exercise the rights and powers of the insolvent insurer under that guarantee or indemnity so as to enable the Guarantee Corporation to recover from the builder or other person and pay into the Building Insurers' Guarantee Fund the amount due under that guarantee or indemnity.

[2] Schedule 4 Savings and transitional provisions

Insert at the end of clause 2 (1):

Insurance (Policyholders Protection) Legislation Amendment Act 2001 .

[3] Schedule 4

Insert at the end of the Schedule with appropriate Part and clause numbers:

Part - Provisions consequent on enactment of Insurance (Policyholders Protection) Legislation Amendment Act 2001

Contracts of insurance with HIH Casualty and General Insurance Limited and FAI General Insurance Company Limited

(1) To avoid doubt:

(a) a certificate of insurance provided on or before 20 June 2001 evidencing a contract of insurance in relation to residential building work:

(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and

(ii) that complied with this Act, and

(iii) that was in force on 20 June 2001,

is, for the purposes of section 92, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that work, and

(b) a certificate of insurance provided on or before 20 June 2001 evidencing a contract of insurance in relation to the supply of a kit home:

(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and

(ii) that complied with this Act, and

(iii) that was in force on 20 June 2001,

is, for the purposes of section 93, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that supply, and

(c) a certificate of insurance provided on or before 15 March 2001 evidencing a contract of insurance in relation to owner-builder work:

(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and

(ii) that complied with this Act, and

(iii) that was in force on 15 March 2001,

is, for the purposes of section 95, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that work, and

(d) a certificate of insurance provided on or before 20 June 2001 evidencing a contract of insurance in relation to residential building work:

(i) that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited, and

(ii) that complied with this Act, and

(iii) that was in force on 20 June 2001,

is, for the purposes of section 96, taken to be a certificate evidencing a contract of insurance that complies with this Act and is in force in relation to that work.

(2) To avoid doubt:

(a) a certificate of insurance provided after 20 June 2001 evidencing a contract of insurance that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited is, for the purposes of section 92, 93 or 96, not a certificate evidencing a contract of insurance that complies with this Act, and

(b) a certificate of insurance provided after 15 March 2001 evidencing a contract of insurance that was entered into with HIH Casualty and General Insurance Limited or FAI General Insurance Company Limited is, for the purposes of section 95, not a certificate evidencing a contract of insurance that complies with this Act.