Succar v Dominium Homes Pty Ltd [2026] NSWSC 1117

Andrew Hales | Luke Sundercombe | Alison Hwang

Key takeouts

• A person is a ‘developer’ for the purposes of the Home Building Act 1989 (NSW) (HB Act) if residential building work is done for a development where that person will own 4 or more of the proposed dwellings once construction is complete. The relevant time for testing ownership is the completion of construction, not some point in the future at large.
• Ownership can mean an owner at law or an owner in equity. Where different people hold the legal and equitable interests, each is an owner.
• Co-owners who plan to divide up a development between themselves will not avoid ‘developer’ status simply by giving each other separate equitable interests in fewer than 4 proposed dwellings, while they remain the registered proprietors of the whole site.

Facts

Five members of the Succar family (Succars) were the registered proprietors, as tenants in common, of land in Sydney (land) on which they planned to build 10 dwellings. In April 2026, the Succars entered into a deed of partition (deed) setting out how they would divide up ownership of the dwellings once construction was complete. Under the deed, each of the Succars would end up owning no more than 3 of the 10 dwellings.

In September 2017, the Succars engaged Dominium Homes Pty Ltd (builder) to carry out the building work on the land. A dispute arose over the builder’s performance. The Succars terminated the building contract in March 2022 and commenced proceedings against the builder. The Succars obtained judgment for just over $3.7 million in March 2025, however, a liquidator was appointed to the builder 2 weeks later.

The Succars also made a claim on a policy of insurance (policy) issued by the NSW Self Insurance Corporation (insurer) under Part 6 of the HB Act. The insurer declined the claim on the basis that each of the Succars was a ‘developer’ within the meaning of the policy, which did not cover claims made by a developer. The policy defined ‘developer’ as having the same meaning as under the HB Act. Section 3A of the HB Act relevantly provides that a person is a developer if residential building work is done in connection with a proposed dwelling in a development where that person will own 4 or more of the proposed dwellings.

The Succars later joined the insurer to the proceedings. This judgment considered the separate question between the Succars and the insurer as to whether each of the Succars was a ‘developer’ such that they were ineligible for indemnity under the policy.

Decision

The Court answered the separate questions in the insurer’s favour and dismissed the proceedings, holding that each of the Succars was a ‘developer’ within the meaning of section 3A of the HB Act and that the Succars’ claim was not covered by the policy.

The key question was whether the residential building work was being done for a development where 4 or more of the proposed dwellings ‘will be owned’ by each of the Succars.

The relevant time is when the construction is completed

The phrase ‘will be owned’ looks to the future, but not to any point in the future at large. It looks to the point at which the proposed dwellings were expected to be built and become actual dwellings, rather than remaining merely proposed ones. The Court answered that question objectively, by reference to the legal arrangements in place when the work was done.

Here, at the time the building work was carried out, the legal arrangements in place meant that the Succars would still be the registered proprietors of the land, and so the owners at law of all 10 dwellings, once construction was complete. The fact that each of the Succars would later come to hold no more than 3 lots individually, once the strata plan was registered and transfers were completed, did not mean that they were not developers.

Either legal or equitable ownership counts

The Succars argued that the deed immediately partitioned their interests in equity, so that from the date of the deed each of them beneficially owned only their own allocated dwellings. They argued that ownership at law then became irrelevant because equity prevails over the common law.

The Court rejected the Succars’ argument. While equity does prevail over common law, this does not mean that common law rules cease to exist.

The definition of ‘owner’ in clause 1 of schedule 1 to the HB Act refers to a person who owns land ‘at law or in equity’. This wording contemplates that the legal owner and the equitable owner may not be the same person. Where this is the case, the legal owner and the equitable owner are both owners.

At law, all five Succars were to own all 10 proposed dwellings as tenants in common once construction was complete. This was enough to make each of the Succars a ‘developer’, regardless of what equitable interest each of them separately held in the specific dwellings under the deed.

The Court did not decide whether the deed in fact made each Succar an owner in equity of the allocated dwellings, and doubted that it did, because the lots in the draft strata plan did not physically exist when the deed was signed. It did not need to decide this point, because ownership at law was enough. An equitable interest in land is not, by itself, ownership: the holder must be able to obtain an order from a court of equity for possession of the land, or for its rents and profits.