Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. Introbuild Constructions Pty Ltd ('the plaintiff') is a building company in New South Wales ('NSW'). It requires Home Building Compensation Fund insurance ('HBCF insurance') to enter residential building contracts exceeding $20,000: s 92 of the Home Building Act 1989 (NSW) ('the HBA'); reg 53 of the Home Building Regulation 2014 (NSW).

2. The plaintiff has been unable to obtain HBCF insurance since December 2023 having been deemed 'ineligible' for it by the delegate of the NSW Self Insurance Corporation ('the second defendant'), Insurance and Care NSW ('the first defendant'). The plaintiff was previously eligible. The first defendant is the only provider of HBCF insurance in NSW.

3. By amended summons dated 20 December 2024, the plaintiff seeks judicial review of the first defendant's decision dated 2 May 2024 ('the ineligibility decision') to uphold an earlier ineligibility decision dated 15 April 2024 and, if successful, orders of certiorari and mandamus.

4. The plaintiff initially advanced three grounds of review, but abandoned the first of them. The remaining grounds of review may be summarised, for introductory purposes, as follows: that the ineligibility decision involved a factual finding that lacked "a proper evidentiary foundation" or was "not open on the material" (ground 2), and that the ineligibility decision involved the misconstruction or misunderstanding of the insurance eligibility guidelines (issued by the State Insurance Regulatory Authority ('SIRA')) under the HBA ('the eligibility guidelines'), thereby resulting "in an improper exercise of statutory power" (ground 3).

5. The Attorney-General for NSW ('the third defendant') was joined to these proceedings as a contradictor, given the first and second defendant adopted the usual course of filing submitting appearances: R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13, 35-36; [1980] HCA 13.

Leave

6. The plaintiff requires leave to bring its application given the summons (and amended summons) were filed more than three months after the date of the ineligibility decision: r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). Notwithstanding, it argues that the Court should exercise its power to extend time (r 59.10(2) of the UCPR) given the existence of a variety of relevant factors, including that it:

1) commenced proceedings nine weeks after the relevant three-month UCPR period expiring (the implication presumably being that this is not a significant delay);

2) used some of that time to complain to and correspond with the SIRA;

3) is particularly interested (r 59.10(3)(a) of the UCPR) in challenging the decision, given ineligibility for the HBCF insurance will "negatively affect its ongoing viability"; and

4) is not aware of any prejudice caused to the defendants by the "passage of time" (r 59.10(3)(b) of the UCPR; plaintiff's submissions at [52]).

7. I accept that a failure to obtain HBCF insurance could have significant implications for the plaintiff. There is no evidence of the defendants suffering prejudice, nor did the third defendant advance any submission opposing the grant of leave. Given these factors, I grant leave to extend time.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198161099a428eb170f4f30d)

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