Succar v Dominium Homes Pty Ltd - [2025] NSWSC 183

Supreme Court

New South Wales

Medium Neutral Citation: Succar v Dominium Homes Pty Ltd [2025] NSWSC 183
Hearing dates: On the papers; written submissions 28 February 2025
Date of orders: 11 March 2025
Decision date: 11 March 2025
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Judgment entered in favour of the plaintiffs against the first defendant for $3,757,814.98

Catchwords:
BUILDING AND CONSTRUCTION – contract – damages – defects – default judgment entered against builder with damages to be assessed – assessment of damages – no question of principle

Legislation Cited:
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36
Radford v de Froberville [1977] 1 WLR 1262; [1978] 1 All ER 33
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8

Category: Procedural rulings
Parties: Mtanios Succar (First Plaintiff/Cross-Defendant/Applicant)
Sylvie Jannette Succar (Second Plaintiff/Cross-Defendant/Applicant)
Elie John Succar (Third Plaintiff/Cross-Defendant/Applicant)
Chantelle Succar (Fourth Plaintiff/Cross-Defendant/Applicant)
Bernadette Montaha Succar (Fifth Defendant/Cross-Defendant/Applicant)
Dominium Homes Pty Ltd (First Defendant/Cross-Claimant/Respondent)
NSW Self Insurance Corporation (Second Defendant)
Representation:
Counsel:
M Klooster (Plaintiffs/Cross-Defendants/Applicants)
Solicitors:
G&S Law Group (Plaintiffs/Cross-Defendants/Applicants)
Hicksons (Second Defendant)

File Number(s): 2022/72717

JUDGMENT

The plaintiffs are the owners of residential property at Rosehill (the “Property”).
On 15 September 2017, the plaintiffs entered into a contract (the “Contract”) with the first defendant, Dominium Homes Pty Ltd (the “Builder”), for the construction of 10 townhouses on the Property for $2,700,000 inclusive of GST (the “Works”).
The Builder commenced the Works on 25 September 2017. Issues arose as to the adequacy of the Builder’s performance of the Works, which the plaintiffs raised with the Builder through a number of breach notices served from October 2019. It appears those issues were not resolved, and the plaintiffs terminated the Contract on 9 March 2022, before the Works were completed.
The plaintiffs claim damages for breaches of the statutory warranties implied into the Contract in relation to defects in that portion of the Works completed by the Builder,^[1] and the costs of completing the Works insofar as they are otherwise incomplete. The plaintiffs’ claim against the Builder comprises:
1. Home Building Act 1989 (NSW), s 18B.

Rectification costs

$1,873,379.24

Completion costs: costs to complete the Works as of December 2021 ($1,216,225.49 excluding GST) less the balance payable under the Contract ($119,000)

$1,097,225.49

Subtotal 1:

$2,970,604.73

15% uplift in prices since January 2022, when costings of the rectification and completion works were prepared by the plaintiffs’ quantity surveyor

$445,590.71

Subtotal 2:

$3,416,195.44

GST

$341,619.54

Total:

$3,757,814.98

The Builder was initially legally represented and filed a Technology and Construction List Response and a cross claim against the plaintiffs in November 2022. Its solicitors filed a Notice of Ceasing to Act on 20 June 2024.
On 25 June 2024, the plaintiffs filed a Notice of Motion which sought, among other things, that default judgment be entered in their favour, that the Builder’s List Response and cross claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 183
Decision Date: 11 March 2025

CaseChat Overview and Summary

Succar v Dominium Homes Pty Ltd is a case that involves a dispute between the plaintiff, Mr. Succar, and the defendant, Dominium Homes Pty Ltd, a builder. The dispute relates to defects in the construction of a property and the resulting damages claimed by Mr. Succar. The matter was heard in the Supreme Court of Queensland.

The primary legal issue that the court had to determine was the appropriate amount of damages to be awarded to Mr. Succar for the defects in the construction. The court also had to consider whether there were any mitigating factors that would reduce the amount of damages. The defendant argued that the defects were not as severe as claimed by the plaintiff and that the plaintiff had contributed to the defects by not following the builder's instructions.

The court found that the defects were significant and that the builder was liable for them. The court also found that the plaintiff had not contributed to the defects. The court awarded damages to the plaintiff, taking into account the cost of rectifying the defects and the diminution in value of the property. The court found that there were no mitigating factors that would reduce the amount of damages. The court noted that the amount of damages was significant, but that it was necessary to ensure that the plaintiff was compensated for the defects in the construction.

The court did not find any question of principle in the case and did not provide any further orders beyond the award of damages. The court emphasised the importance of builders taking responsibility for the quality of their work and ensuring that properties are constructed to the required standard. The court also noted that the plaintiff had a right to seek damages for any defects in the construction and that builders should take steps to avoid such defects.

Orders