Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17

Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17

The Appeal Panel held that, applying the ruling principle, the Homeowners were entitled to recover the reasonable cost of installing the gravity fed sewer system, set at $41,757 as agreed by the parties' experts. The Tribunal erred in law by (1) relying only on the comparative cost and speed of a pump system without satisfactory evidence of functional equivalence, (2) failing to properly place the evidentiary onus on the Builder to displace the ruling principle, and (3) finding that no loss was suffered because payment was made by the Homeowners' son—agency law entitled the Homeowners to indemnity. Liquidated damages were recalculated to allow for an additional period of delay. The net...

Parties
Appellants and Cross Respondents: Yuan Yeh and Huang Yeh; Respondent and Cross Appellant: Bazdaric Homes Pty Ltd
Jurisdiction
Australia
Judgment Date
24 January 2025
Procedural Posture
Civil Appeal / Appeal Panel Decision
Outcome
Homeowners' appeal upheld in part, costs orders and monetary orders at first instance set aside, and new quantum determined payable to Builder. Orders for re-submission on costs made.
Legal Topics
Assessment of Damages for Breach of Building Contract, Mitigation of Loss, Statutory Warranties Under Home Building Act, Principal/agency Liability for Agents' Acts, Liquidated Damages, Interest on Judgment Debts
Building and Construction Contract Law Consumer Law Assessment of Damages for Breach of Building Contract Mitigation of Loss Statutory Warranties Under Home Building Act Principal/agency Liability for Agents' Acts Liquidated Damages +1 more

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Parties

Yuan Yeh and Huang Yeh

Appellants and Cross Respondents

Bazdaric Homes Pty Ltd

Respondent and Cross Appellant

Procedural Posture

Civil Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in denying damages for cost of gravity fed sewer connection due to absence of direct evidence of loss or reasonableness of method chosen
  2. 2 Whether the correct principles for assessment of damages for breach of a building contract were applied
  3. 3 Whether payments made by an attorney/agent on behalf of principals constituted loss to principals recoverable as damages

Ratio Decidendi

The Appeal Panel held that, applying the ruling principle, the Homeowners were entitled to recover the reasonable cost of installing the gravity fed sewer system, set at $41,757 as agreed by the parties' experts. The Tribunal erred in law by (1) relying only on the comparative cost and speed of a pump system without satisfactory evidence of functional equivalence, (2) failing to properly place the evidentiary onus on the Builder to displace the ruling principle, and (3) finding that no loss was suffered because payment was made by the Homeowners' son—agency law entitled the Homeowners to indemnity. Liquidated damages were recalculated to allow for an additional period of delay. The net...

Court Disposition

Homeowners' appeal upheld in part, costs orders and monetary orders at first instance set aside, and new quantum determined payable to Builder. Orders for re-submission on costs made.

Orders

  • In the Homeowners' appeal (2024/00186805) the appeal is upheld.
  • Orders 1 and 2 made in proceedings 2023/00409049 are set aside.