BUILDING AND CONSTRUCTION — separate question — residential building work — where builder insolvent — insurance — where plaintiffs claim on a policy of insurance issued in accordance with the Home Building Act 1989 (NSW) — whether cover excluded because plaintiffs were developers within the meaning of s 3A of the Home Building Act — whether each plaintiff “will be” an “owner” of 4 or more dwellings — where plaintiffs executed a deed of partition — where plaintiffs will be registered proprietors of land when construction of 10 dwellings will be completed — ownership of dwellings at law sufficient within the meaning of s 3A of the Home Building Act irrespective of position in equity — each plaintiff was a developer — insurance cover excluded — proceedings dismissed
Quick Take
1Under s 3A of the Home Building Act 1989 (NSW), the statutory definition of 'owner' — 'at law or in equity' — is disjunctive: if a person is an owner of land at law (as registered proprietor), that is sufficient to engage the developer exclusion, irrespective of any different equitable ownership arising from a deed of partition or similar arrangement.
2The future-looking language 'will be owned' in s 3A(2)(a) directs attention to who will own the dwellings at the time the building work is expected to be completed, not at some indeterminate future time after dispositions or transfers are registered.
3Where co-owners of land undertake residential building work for 4 or more dwellings and will remain registered proprietors of the whole land at the time of completion, a deed of partition allocating equitable interests in fewer than 4 dwellings each does not prevent them from being 'developers' excluded from home building insurance cover.
