DB Homes Australia Pty Ltd v Zhao [2020] NSWCATAP 206

DB Homes Australia Pty Ltd v Zhao [2020] NSWCATAP 206

On proper construction of the 2017 Agreement, the builder was responsible for all stormwater drainage work identified on the homeowners' approved 'Stormwater Drainage Plan', including the disputed stormwater drainage. The tribunal's earlier order requiring costs to be shared was wrong; the full cost should be borne by the builder. The builder was also responsible for arranging and paying for the removal of the hose from the sewer pipe, having engaged the plumber. The tribunal's finding on this issue was open on the evidence.

Parties
Appellant: DB Homes Australia Pty Ltd; First Respondent: Dong Zhao; Second Respondent: Jun Xia
Jurisdiction
Australia
Judgment Date
12 October 2020
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal allowed in part; otherwise dismissed.
Legal Topics
Construction of Contract Terms, Home Building Contract Disputes, Rectification of Building Works, Occupation Certificate Requirements, Costs Payment Responsibility
Contract Law Building and Construction Law Consumer Law Construction of Contract Terms Home Building Contract Disputes Rectification of Building Works Occupation Certificate Requirements Costs Payment Responsibility

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Parties

DB Homes Australia Pty Ltd

Appellant

Dong Zhao

First Respondent

Jun Xia

Second Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether disputed stormwater drainage work was included in the building contract
  2. 2 Who was responsible for the cost of removing the hose in the sewer pipe
  3. 3 Proper construction of the written contract between builder and homeowners

Ratio Decidendi

On proper construction of the 2017 Agreement, the builder was responsible for all stormwater drainage work identified on the homeowners' approved 'Stormwater Drainage Plan', including the disputed stormwater drainage. The tribunal's earlier order requiring costs to be shared was wrong; the full cost should be borne by the builder. The builder was also responsible for arranging and paying for the removal of the hose from the sewer pipe, having engaged the plumber. The tribunal's finding on this issue was open on the evidence.

Court Disposition

Appeal allowed in part; otherwise dismissed.

Orders

  • The appeal is allowed in part.
  • Order 2 of the Tribunal on 10 September 2019 is varied by deleting '09-Oct-2019' and inserting '[a date which is 4 weeks after the publication of these reasons for decision]', and deleting 'shared between the parties' and inserting 'paid by DB Homes Australia Pty Ltd.'