Potts v Beechwood Homes (NSW) Pty Limited [2021] NSWCATCD 143

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Potts v Beechwood Homes (NSW) Pty Limited [2021] NSWCATCD 143 Hearing dates: 13 August 2021 Date of orders: 10 November 2021 Decision date: 10 November 2021 Jurisdiction: Consumer and Commercial Division Before: K Ross, Senior Member Decision: (1) Beechwood Homes (NSW) Pty Limited is to pay to Rebecca Potts & Daniel Potts the sum of $25,149.00 on or before 9 December 2021. Catchwords: BUILDING AND CONSTRUCTION — Breach of contract — Where house positioned other than as shown on the plans — Where the position of the house had been specifically required — Loss and damage — Remoteness — Causation Legislation Cited: Home Building Act 1989 (NSW) Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613; 28 ALJR 319; [1954] ALR 929 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 at 151; [1843-60] All ER Rep 461; [1854] EngR 296 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Texts Cited: Nil Category: Principal judgment Parties: Rebecca Potts (First Applicant) Daniel Potts (Second Applicant) Beechwood Homes (NSW) Pty Limited (Respondent) File Number(s): HB 21/00180

REASONS FOR DECISION

Application 1. Mr and Mrs Potts ("the Homeowners") engaged Beechwood Homes (NSW) Pty Ltd ("the Builder") to construct a home for them on the block of land which they had purchased in Cooranbong. They asked the Builder to position the home as close to the southern boundary as possible, to maximise the access on the northern boundary to the back of the block. This involved the construction of an edge beam to avoid the necessity for a retaining wall. The home was approved 1000mm from the boundary. 2. When the slab was laid, the Homeowners questioned its position on the block. They were assured by the Builder's employees that it was correct. However, those assurances proved hollow. The home has not been positioned 1000mm from the southern boundary in accordance with the approved plans, but rather 1180mm. The Homeowners allege that the Builder's error means that they cannot get their car, or the boat they had planned to purchase, down the side of the house to the carport. 3. The Homeowners acknowledge that demolition and reconstruction of the house would be excessive. Instead they seek compensation of $100,171.43 from the Builder, made up as follows: * Refund of cost of retaining wall $6,028.00 * Drop edge beam $27,076 * Half the cost of the shed/carport $6900 * Loss of value of property $35000 * Costs to relocate: Agents fees $17075.33, conveyancing costs $1716.60, stamp duty $27663, removalist costs $3012.50. 1. The Builder concedes that the house has been positioned 1180mm instead of 1000mm from the boundary but, for the reasons which will be set out below, opposes the orders sought. 2. The Tribunal made directions for both parties to provide the documents (including witness statements) which they intended to rely upon for the hearing, to each other and to the Tribunal. No documents or statements were provided by the Builder.