The Tribunal held that contractual provisions in a standard NSW residential building contract reflecting s 92(2) HBA — prohibiting the builder from demanding or receiving payment until warranty insurance is in force — operate as enforceable contractual terms entitling the owner to return of money paid while no insurance exists. Where a building contract forming part of a land and home package was frustrated by rescission of the associated land contract, the owner was entitled to recover the full deposit, and the builder failed to establish a quantum meruit entitlement to retain any portion because the invoices from related entities did not sufficiently prove that the owners received any benefit. The question of whether ostensible authority or ratification bound the builder was resolved against the builder on the facts, with the Tribunal also noting that even absent a binding contract, the money would be recoverable as paid under a mistake.
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