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

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh [2025] NSWCATAP 17 Hearing dates: 16 September 2024 Date of orders: 24 January 2025 Decision date: 24 January 2025 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Goldstein, Senior Member Decision: (1) In the Homeowners' appeal (2024/00186805) the appeal is upheld. (2) Orders 1 and 2 made in proceedings 2023/00409049 are set aside. (3) The Homeowners (Yuan Yeh and Huang Yeh) are to pay to the Builder (Bazdaric Homes Pty Ltd) the sum of $18,223 within 14 days. (4) In respect of the Builder's appeal (2024/00238320), orders 2 (in 2023/00409049) and 2 (in 2023/00379121) are set aside. (5) In respect of both appeals, the parties are given leave to file and serve submissions concerning what orders should be made for payment of costs incurred with respect to the proceedings at first instance and what orders should be made with respect to costs incurred in the two appeals, such submissions to be made within 21 days of today's date. (6) The submissions may include a submission from the Builder as to whether the Appeal Panel should make a further order for payment of interest on the late payment of unpaid invoices. (7) The parties have leave to file and serve submissions in response to the submissions lodged by the other party, such submissions to be lodged within 14 days of the receipt of the initial submissions. (8) The submissions of the parties should include a submission as to whether the Tribunal may determine costs (and any alteration in the amount due by reason of a claim by the Builder for interest on unpaid invoices) on the papers and by so doing dispensing with a further hearing. Catchwords: Appeal – building and construction dispute – assessment of damages due following breach by builder to comply with its contractual obligations – whether the homeowners had proven loss – whether the builder had displaced the "ruling principle" by evidence that the homeowners had failed to mitigate or had acted in breach of the principles described in Bellgrove v Eldridge. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Power of Attorney Act 2003 (NSW) Cases Cited: Arstan v Rixon [2001] HCA 40 at [32]; (2021) 395 ALR 390 Banco de Portugal v Waterlow and Sons [1932] AC 452 Bellgrove v Eldridge [1954] HCA 36 Builder's Insurers' Guarantee Corporation v The Owners – Strata Plan no 57504 [2010] NSWCA 23 Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499 Pavlis v Wetherill Park Market Town Pty Ltd [2014] NSWCA 292 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Radford v De Froberville [1977] 1 WLR 1262; [1978] 1 All ER 33 Robinson v Harman (1884) 1 Exch 850 Suttor v Gundowda Pty Ltd [1950] 81 CLR 418 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Thacker v Hardy (1878) 4 QBD 685F Texts Cited: None cited Category: Principal judgment Parties: Yuan Yeh and Huang Yeh (Appellants and Cross-Respondents) Bazdaric Homes Pty Ltd (Respondent and Cross-Appellant) Representation: Counsel: B DeBuse (Appellants/Cross-Respondents) M Sheldon (Respondent/Cross-Appellant)