Yeh v Bazdaric Homes Pty Ltd; Bazdaric Homes Pty Ltd v Yeh (No 2)

1. As stated above, we published our decision on 24 January 2025. In that decision we described the Appellants and Cross-Respondents as the Homeowners, and the Respondent and Cross-Appellant as the Builder. We adopt the same descriptions in this decision.
2. The result of our decision was to uphold the Homeowners' appeal. We set aside the order of the Tribunal at first instance requiring the Homeowners to pay to the Builder the sum of $86,781.04 and a further sum, calculated at the rate of $33.98 per day, and in the place of those orders made an order for the Homeowners to pay to the Builder the sum of $18,223. A work order made at first instance requiring the Builder to undertake certain work was not an issue in the appeal.
3. The appeal largely concerned whether the Builder should pay damages to the Homeowners in respect of the Builder's failure to complete certain sewer work. In the appeal we held that the Builder should have undertaken such work and that the Homeowners should be entitled to an order for compensation in the sum of $41,757. We also held that the Builder was not entitled to liquidated damages in the sum of approximately $31,000. It was the result of these two decisions that the order in favour of the Builder at first instance requiring the Homeowners to pay $86,781.04 was reduced to an order requiring the Homeowners to pay to the Builder the sum of $18,223.
4. The Tribunal at first instance published a separate decision on costs. In the Builder's application the Tribunal ordered the Homeowners to pay the Builders costs on the ordinary basis and in the Homeowners application the Tribunal ordered the Builder to pay 50% of the Homeowners costs. The Builder appealed the order requiring it pay 50% of the costs of the Homeowners. We upheld the appeal on the basis that having substantially altered the amount due to the Builder in the substantive appeal the costs orders made at first instance should be reconsidered.
5. Having regard to the above background we now consider the submissions of the parties with respect to costs.

Builder's submissions on costs dated 18 February 2025

1. The Builder submitted that the appropriate costs orders are as follows:

(1) The Homeowners to pay, on the ordinary basis, the Builder's costs at first instance.

(2) There be no order for costs of the appeal, the intent being that each party would pay their own costs.

1. The following summarises the Builder's submissions:

(1) The vast majority of the alleged defects were found not to be defective. Only those which the Builder accepted were defective, and offered to rectify, were found to be defective. The Builder was ordered to (and did before the appeal) rectify those defects.

(2) The Homeowners did not challenge the first instance findings in respect of any of the disputed 15 defects, other than the defect concerning the sewer. Therefore, the only appropriate order is that the Homeowners pay the Builder's costs of the Homeowners application below. That is justified because the Homeowners failed on every disputed issue except for one and were found to have an ultimate liability to the Builder. Although the ultimate liability was reduced on appeal, the ultimate liability remains.

(3) So far as the Builder's claim was concerned, the Builder claimed an entitlement to be paid $89,030.50 for unpaid invoices. The Builder succeeded. The Homeowners did not seek to disturb their liability in respect of the invoices on appeal. There is no reason why Homeowners should not be ordered to pay the Builder's costs below.

(4) Nothing that occurred on appeal should cause the Homeowners to not be responsible for the Builder's costs below. The Homeowners had success in respect of the sewer on appeal, but even on appeal, the Homeowners were found to have an ultimate liability to the Builder.

1. The Builder's submissions also referred to aspects of the Homeowners' conduct which the Builder submitted supported the view that the Homeowners should pay the Builder's costs. The Builder relied upon the affidavit of Emma MacFarlane affirmed 29 April 2024 in support of the following assertions:

(1) The Homeowners refused to participate in any informal settlement conference until after the evidence had been served in the proceedings, despite clause 27 of the relevant contract mandating an informal meeting to avoid the very circumstances that occurred in this case.

(2) The Homeowners commenced proceedings for the defects rather than taking possession of the property and administering any defects through the defect liability period.

(3) Throughout the proceedings, the Homeowners persistently failed to comply with the Tribunal's procedural directions, including failing to meet extensions of time they sought and were granted, ultimately resulting in a guillotine order made on 20 October 2023.

(4) The Homeowners served three expert reports from Gordon Xue, each version seemingly superseding the earlier version. The Builder sought confirmation from the Homeowners' solicitors that the third report would be the one to be relied upon by the Homeowners and whether the two earlier versions would be withdrawn. The Homeowners refused to withdraw the first reports. This resulted in the Builder incurring additional unnecessary costs. However, on 8 March 2024 (one business day before the final hearing commenced) the Homeowners served a joint bundle of documents indicating, for the first time, that they would only be relying upon the third report.

1. Although the Homeowners had success on the appeal, the Builder submitted that having regard to all relevant circumstances that success should not cause the Appeal Panel to make a costs order in the Homeowners' favour. Rather, each party should pay their own costs of the appeal.
2. Finally, the Builder submitted that in the appeal the Homeowners ultimately sought a net payment in their favour on the basis that they claimed damages of $100,399.99 for the sewer work. That claim was not abandoned until the course of argument in the appeal, when the Homeowners accepted that at most they could be entitled to the sum of $41,757. The result of that belated concession was that even though the Homeowners succeeded in the appeal, they still retained a liability to the Builder arising out of the proceedings. The Builder remained justified in resisting the appeal as framed and not abandoned until the course of the appeal and, as a consequence, each party should pay their own costs of the appeal.

Homeowners' submissions on costs lodged 18th February 2025

1. On 18 February 2025 the Homeowners lodged submissions on costs, together with an affidavit of Logan Joseph Cavanagh( solicitor with Construction Legal) dated 18 February 2025. The orders that the Homeowners sought are as follows:

(1) In respect of the Builder's claim at first instance, each party should pay their own costs, or alternatively that the Homeowners pay the Builder's costs on the ordinary basis.

(2) In respect of the Homeowners' cross-claim the Builder should pay the Homeowners' costs on the ordinary basis until 12 December 2024 and on an indemnity basis thereafter, or alternatively, that the Builder pay the Homeowners' costs on the ordinary basis.

(3) In respect of the appeal, the Builder should pay the Homeowners' costs on the ordinary basis until 16 May 2024 and on an indemnity basis thereafter or, alternatively, that the Builder pay the Homeowners' costs on the ordinary basis.

(4) In respect of the Builder's appeal, that the Builder pay the Homeowners' costs on the ordinary basis.

(5) The Homeowners consented to costs being determined on the papers and a hearing on costs dispensed with.

1. The Homeowners submitted that the Builder had mixed success in relation to the Builder's claim at first instance. The Tribunal found that the Builder was not entitled to interest on tax invoice 1813 and that the claim for interest on tax invoice 1845 was only payable from 25 August 2023 (the Builder having claimed interest from 14 December 2022).
2. The Tribunal found that the Homeowners were entitled to set-off against the amount claimed by the Builder by way of liquidated damages. The Homeowners submitted that the Tribunal found that the Builder was entitled to $16,363.50 despite the Builder claiming $89,030.50. Having regard to the fact that the Builder only had mixed success in relation to the Builder's claim it would be appropriate that the parties should bear their own costs. The Homeowners submitted that this is particularly the case given that the Appeal Panel found that the Homeowners were entitled to substantial set-offs against the Builder's claim.
3. In respect of the Homeowners' cross-claim, the Homeowners submitted that the Homeowners received substantial damages and recovered almost the entirety of their claim. The Builder was ultimately found liable to pay $72,667 (based upon liquidated damages being assessed at $30,910 and a set-off in respect of the sewer main defect in the amount of $41, 757): see Appeal Panel decision at [205], [80] to 83]. The Homeowners submitted that this alone is sufficient to order that the Builder pay the Homeowners' costs on an ordinary basis.
4. The Homeowners submitted that they were successful in establishing that the Builder had breached the s 18B of the Home Building Act 1989 (NSW) (the HB Act) obtaining a work order against the Builder in respect of various defects. The Homeowners submitted that it is also relevant that the Builder's refusal to recognise its liability for (among other things) the sewer main necessitated the Homeowners' cross-claim. The Homeowners' cross-claim was not a case where the Homeowners could simply have waited for the Builder to rectify works, because the Builder made clear that it would not rectify the contested work. The Homeowners submitted that they should be indemnified by the Builder for having been required to prosecute their cross-claim.
5. In respect of the Homeowners' appeal, the Homeowners submitted that they were successful in overturning the decision below and that the grounds on which the Homeowners were unsuccessful were neither dominant nor severable and did not cause the parties to incur substantial additional costs. The Homeowners were entitled to press each of the grounds of appeal and the mere fact that the Homeowners were not successful on some grounds does not disentitle them to ordinary costs. Their success in the appeal resulted in the Homeowners ultimately being successful in their cross-claim.
6. Whilst the Builder's appeal was granted, it was granted only because the Homeowners were successful in the Homeowners' appeal and displaced the original orders made below requiring new orders as to costs to be entered. The Builder's appeal as to costs was ultimately pointless in light of the success of the Homeowners' appeal.
7. The Homeowners submitted that the matters referred to in the above paragraphs are sufficient to grant the Homeowners costs on an ordinary basis in the Homeowners' cross-claim, and in both appeals.
8. The Homeowners' submissions then turned to their claim for indemnity costs as a consequence of the making of Calderbank offers.
9. On 28 November 2023 the Homeowners made an offer in accordance with the principles in Calderbank v Calderbank (the November letter). The Homeowners submitted that in respect of the Builder's claim and the Homeowners' cross-claim the November letter contained a real and genuine element of compromise to the extent that the Homeowners discounted many of their claimed entitlements by 30% when they were in fact entitled to more. Further, the Homeowners granted the entirety of the Builder's claim as a set-off against the Homeowners' cross-claim foregoing the opportunity to contest the validity of those invoices (including for the defective works that were pressed in the Homeowners' defence to the Builder's claim). The Homeowners submitted that the November letter made a clear delineation between the amounts claimed for defective and incomplete works and legal costs, offering those legal costs that would be claimable at a higher rate (eg. expert fees) at a significantly discounted rate.
10. The Homeowners submitted that the November letter was unreasonably rejected to the extent that the Homeowners' quantum was discounted including a heavily discounted sum for legal costs and expert costs being $142,879.30 which have only increased substantially since the time of the offer following a two-day hearing and the subsequent appeal proceedings. The Homeowners submitted that, had the Builder accepted the offer contained in the November letter, it would have been better off considerably in respect of legal fees. The Builder had ample opportunity to consider the offer.
11. We interpose to make the comment that the November letter preceded the hearing at first instance by approximately five months (the hearing being on 12 and 13 March 2024) and the decision at first instance was published on 22 April 2024.
12. On 15 May 2024 the Homeowners made another offer in accordance with the principles in Calderbank v Calderbank (the May letter). In respect of both the Homeowners' appeal and the Builder's appeal, the May letter proposed by way of compromise that the Homeowners would pay the Builder substantially more, being 5.3 times what they were required to pay according to their legal entitlements based on the appeal panel decision, and that the parties were to bear their own costs. The submissions of the Homeowners state that the Builder unreasonably rejected the offer contained in the May letter. The Homeowners' offer to pay the whole amount of the primary proceedings to the Builder being $86,781, which is more than the Appeal Panel ended up determining was payable. Thus, the Homeowners achieved a more favourable outcome in the terms of the May letter.

1. The Builder lodged submissions in reply to the Homeowners' submissions. The following is a summary of the Builder's submissions in reply.
2. The Builder submitted that it had complete success on its claim at first instance. That success remains on the appeal. The Builder claimed an entitlement to payment which the Homeowners refused. Payment of all outstanding invoices was a necessary precondition for the Homeowners to be entitled to take possession of the property.
3. The Builder submitted that the Homeowners cross-claim was comprised of two dominant matters. First, there was a claim for liquidated damages which the Homeowners said completely offset any liability it had to the Builder. The Tribunal at first instance and the Appeal Panel rejected that contention and in the result the Homeowners retained a net liability to the Builder.
4. The Builder submitted that the Homeowners failed on every disputed defect. The only defects they obtained a work order in respect of were those matters conceded by the Builder. The Builder further submitted that the Homeowners initially sought damages, rather than a work order and only abandoned their damages claim for defects at the hearing. The Builder described this, as a belated concession, necessitating significant additional quantum evidence which was wasted.
5. In respect of the Homeowners' appeal the Builder repeated the submission that the Homeowners failed to obtain a net payment in their favour. The Homeowners also made a significant concession in the course of the appeal. It was not until the course of the argument that the Homeowners accepted that at most they could be entitled to the reasonable amount of rectification being less than half of the amount claimed ($41,757). In those circumstances the Builder remained justified in resisting the appeal as framed and not abandoned until the course of the appeal. As a consequence, each party should pay their own costs of the Homeowners' appeal.
6. In respect of the Builder's appeal, the Builder submitted that it achieved the orders that it sought and it should have its costs.
7. In respect of the Calderbank offers, the Builder submitted that both offers were for an amount far more favourable to the Homeowners than the result they achieved at first instance and on appeal. Therefore, the claim for indemnity costs should be rejected. Additionally, the Builder submitted that the offers were impossible to reasonably assess because both were inclusive of an amount of costs. There were four sets of proceedings. It was impossible and, and remains impossible, to assess the likely outcome of the costs decisions and therefore whether the offers ought to have been accepted or not.

1. On 4 March 2025 the Homeowners lodged submissions in reply to the submissions of the Builder dated 18 February 2025. What follows is a summary of those submissions.
2. The Homeowners' submissions state that the Builder's submissions to the effect that the Builder was successful at first instance are misleading. The Homeowners were successful in respect of 13 out of 14 defects that they claimed as part of their cross application. The Homeowners submitted that this was the reason that the Tribunal awarded costs in the original proceedings to the Homeowners in respect of their cross-application.
3. Another factor, according to the Homeowners' submissions, is that in in determining this costs application, it is relevant to take into account the quantum of the respective defects and the amount of time spent at hearing in relation to the same. Defect item 12 (concerning the sewer) was significant in quantum. The Homeowners submitted that substantial time was not spent on any of the defects in relation to which the Homeowners were unsuccessful.
4. The Homeowners reject the Builder's submission that the vast majority of the items were found not to be defective. The Homeowners submitted that it was the Builder's refusal to recognise its liability for defective works (including the sewer) that necessitated the Homeowners' cross-claim. The Homeowners submitted that the Builder refused to rectify work it accepted were defective prior to the appeal proceedings. The Homeowners submitted that it cannot be said that the Builder was successful on the Homeowners' cross-claim.
5. The Homeowners further submitted that the Builder has not in fact rectified all the defective work. In support of this assertion, the Homeowners have lodged the affidavit of Logan Joseph Cavanagh, solicitor for the Homeowners, and dated 4 March 2025. That affidavit set out procedural developments in the proceedings for the purposes of making the submission that the proceedings at first instance were not delayed by the Homeowners. The affidavit also dealt with the Builder's complaint that the Homeowners provided three expert reports from the same expert. The affidavit contains evidence that the Homeowners solicitors engaged in correspondence seeking to explain the difference in the reports. The affidavit states that Mr Cavanagh has been informed that work rectifying the defects to items 3 and 8 has not yet been completed. Finally, the affidavit states that in June 2024 the Homeowners paid the Builder $86781.04 and that this means that the Bulder has been overpaid $68558.04 (taking account of our appeal panel order that the Builder is entitled to $18223). The affidavit states that the overpayment has not been returned.
6. In respect of the Builder's claim, the Homeowners submitted that, although the Builder succeeded, it did not do so on the basis on which it was pleaded. That is, the Builder claimed the Homeowners were liable for interest on various invoices. However, the Tribunal found interest was not payable with respect to tax invoice 1813 and payable for only a portion of the period claimed in respect of tax invoice 1845. The Tribunal also found that practical completion, a precondition for determining part of the Homeowners' liability to the Builder, was substantially later than claimed by the Builder. In summary, the Homeowners submitted that there were serious issues to be determined at the hearing and the Builder's claim cannot be described as wholly successful.
7. The Homeowners submitted that the appropriate order is that the parties bear their own costs in relation to the Builder's claim because both parties were successful in distinct aspects of the Builder's claim.
8. The Homeowners' submissions took issue with the Builder's criticisms of the way the Homeowners conducted the proceedings. In particular, the Homeowners deny that they were the cause of unreasonable delay and expense. The Homeowners' submissions also took issue with the Builder's submissions concerning the service of more than one report from Mr Xue. The Homeowners' submissions state that the amendments to the reports were explained in correspondence from the Homeowners' solicitors.
9. The Homeowners' submissions also deal with costs of the appeals. The submissions refer to the Builder's complaint that a higher amount was pressed in submissions with respect to the sewer and then dropped in oral argument and the Homeowners' submissions state that that matter does not bear on costs as the decision to drop the claim for the higher amount had no costs impact on the Builder.
10. The Homeowners seek a further order from the Appeal Panel arising out of a matter referred to in the affidavit of Logan Cavanagh dated 4 March 2025. As stated above that affidavit states that the Builder has been provided with an overpayment of $68,558.04 based on the Appeal Panel's determination that $18,223 was payable by the Homeowners to the Builder. The Homeowners state that the overpayment has not been returned to the Homeowners despite multiple requests. The Homeowners seek an order pursuant to s 81(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and s 48O(1) and (2) of the HB Act to the effect that order 3 made by the Appeal Panel in both appeal proceedings be varied to provide the following:

"The Builder is to return to the Homeowners the sum of $68,558.04 within 14 days."

1. The Homeowners' submissions state that the Builder has not been given notice of the Homeowners' decision to include the above request of the Appeal Panel and the Homeowners' consent to the Builder being granted a reply on this issue solely so that the Appeal Panel can be satisfied that due process has been granted to the Builder.
2. We record that the Builder has not provided the Tribunal with any submission concerning this aspect.

1. The proceedings under appeal were conducted in the Consumer and Commercial Division of the Tribunal and therefore questions of costs are regulated by the provisions of s 60 of the NCAT Act and r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). In essence, the Tribunal may award costs in these proceedings because the amount claimed or in dispute exceeded $30,000 and there is no necessity for the Tribunal to consider whether there are special circumstances warranting an award for costs.
2. We agree with the principles summarised in the Homeowners' submissions derived from the Appeal Panel decision in Thompson v Chapman [2016] NSWCATAP 6 to the following effect:

(1) Rule 38 provides a general discretion to award costs.

(2) The starting point in exercising such discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs in their favour.

(3) The reason for an order for costs being made is that it is considered to be appropriate for the party who incurred costs caused by the other party in litigation to be reimbursed. An award of costs is by way of indemnity to the successful party and not as a punishment to the unsuccessful party.

(4) The factors to be considered in awarding costs in a particular case are not confined as to do so would constrain the general discretion. However, factors that might influence whether the usual order for costs should apply include whether, by reason of the relative success of the parties on different issues and the time taken to determine those, that an order for costs based on issues should be made. Another factor might be whether by reason of the nature of the proceedings, the usual rule should otherwise be displaced in whole or in part.

1. The Tribunal is also empowered to award indemnity costs but the discretion to do so must be exercised judicially: Mead v Watson [2005] NSWCA 133 at [8]. Exercise of the discretion must be the subject of careful reasoning and caution should be exercised in making such as an award.
2. With respect to the claim for indemnity costs arising out of a Calderbank offer the authorities say that an offer to settle proceedings expressed in terms of the principles in Calderbank v Calderbank [1975] All ER 333 must be sufficiently clear to enable the offeree to make a reasonably considered comparison between the offer made and the ultimate relief it is seeking in all respects. The offer must therefore be clear, precise and certain and also must contain a genuine element of compromise. Further, in order to obtain an order for indemnity costs, it must be determined that the rejection of the Calderbank offer must have been unreasonable: SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [37].
3. It is convenient to consider costs by reference to each of the separate applications, namely the Builder's application at first instance, the Homeowners' application at first instance, the Homeowners' appeal and the Builder's appeal.
4. So far as the Builder's application at first instance is concerned, the Tribunal at first instance ordered the Homeowners to pay the Builder's costs. The Tribunal stated that the Builder had to bring its case to obtain payment of the amounts claimed.
5. In our view, nothing has occurred in the course of the two appeals which would warrant setting aside that order. Accordingly, we propose to make an order to the effect that the order of the Tribunal at first instance in proceedings 2023/00409049 that the Homeowners are to pay the costs of the Builder on the ordinary basis as agreed or assessed is affirmed.
6. In respect of the Homeowners' application, the Tribunal at first instance ordered the Builder to pay 50% of the costs of the Homeowners on the ordinary basis, as agreed or assessed. It is clear from the decision at first instance that the Tribunal declined to make an order requiring the Builder to pay the whole of the Homeowners' costs by reason of the fact that the Homeowners failed in relation to the claim concerning the sewer which the Tribunal described as a substantial and dominant issue. In our view, had the Tribunal determined the sewer issue in the manner that we have decided that it should have been determined, then the Tribunal at first instance would have made an order requiring the Builder to pay the whole of the Homeowners' costs of the Homeowners' application. In light of the Builder's submissions it is necessary to consider whether that position should prevail.
7. We do not accept the accuracy of the Builder's submission that the Homeowners failed in every disputed defect. A perusal of the first instance decision reveals that there were disputes with respect to items 2, 6, 9 and 11. Some disputes concerned whether there was a defect at all, and others concerned a difference of opinion between experts as to what should be done. Further, the Homeowners' application should be considered in the light of the Appeal Panel's decision concerning the sewer. The Homeowners submitted that that item occupied a significant amount of the hearing. This would appear to be accurate given the number of paragraphs devoted to the issue in the first instance decision and the statements made by the Tribunal at first instance.
8. Having regard to the outcome of the appeal we are of the view that the order made by the Tribunal limiting the obligation of the Builder to pay only 50% of the Homeowners' costs in respect of the Homeowners' application ought to be varied and that the position should be that the Builder should pay the whole of the costs of the Homeowners in respect of the Homeowners' application.
9. Both parties invited us to consider aspects of the litigation by reference to specific issues (such as the number of defects found as opposed to those that were rejected) or to alleged lack of cooperation ( such as the provision of more than one experts report without withdrawing prior reports until a late stage ). We decline to conduct the analysis required to consider these matters as we are of the opinion that costs can be determined appropriately by reference to the overall outcomes of the parties' applications and appeals.
10. We will now consider whether the Homeowners are entitled to an order for costs to be paid on an indemnity basis.
11. We turn to the November letter for the purposes of considering whether it constitutes a letter sufficient to invoke the principles in Calderbank v Calderbank. It would appear from that letter that the Homeowners proposed that the Builder pay the Homeowners the sum of approximately $247,000. That sum was comprised of sums claimed by the Homeowners against the Builder but compromised to the amount $334,000 less sums claimed by the Builder against the Homeowners in the amount of approximately $80,000. The Homeowners have not achieved an outcome more favourable than the Calderbank offer and therefore are not entitled to indemnity costs by reason of the offer in the November letter.
12. The May letter referred to earlier also contained a Calderbank offer. That letter was issued after the publication of the Decision at first instance and before the lodgment of the appeals. The May letter in essence contained an offer by which the Homeowners agreed to pay $86,000 to the Builder. The Homeowners have achieved a significantly more favourable result in the appeals than the terms of the May offer. The May letter contained terms that were clear so as to enable the Builder to make a comparison between the terms of the offer and the terms of the relief that the Builder was seeking. The terms contained a genuine element of compromise and its rejection by the Builder was in our view unreasonable. However, before concluding whether the May offer appropriately forms the basis of an order for indemnity costs of the appeals, we propose to consider the appeals more generally.
13. We agree with the Homeowners' submissions to the effect that the Homeowners have been successful in overturning the Decision at first instance and that the grounds on which the Homeowners were unsuccessful were neither dominant nor severable and did not appear to cause the parties to incur substantial additional costs.
14. In our view the overall success of the Homeowners entitles them to an order that their costs incurred in their appeal ought to be paid by the Builder.
15. We now turn to the Builder's appeal. We agree with the Homeowners that that appeal was only upheld because the Homeowners were successful in their appeal necessitating reconsideration of the original orders concerning costs. To the extent that the Homeowners have incurred costs in responding to the Builder's appeal they should have an order for costs in their favour on the basis that the reconsideration of the earlier costs orders (or at least most of them) was a necessary outcome of the Homeowners' successful appeal.
16. For the reasons earlier indicated, the result of the May Calderbank offer is that the Homeowners are entitled to costs of the appeals from 16 May 2024 on an indemnity basis. There is no basis for separating the Homeowners' appeal and the Builder's appeal in our consideration of indemnity costs because the result in the Builder's appeal was, as stated earlier, a necessary outcome of the Homeowners' success in their appeal.
17. Finally, there does not appear to be a basis to reject the Homeowners' application for an order to the effect that the Builder return to the Homeowners the sum of $68,558.04 (being the alleged overpayment) within 14 days.
18. As a result of the above reasons, we may the following orders:

(1) The Appeal Panel dispenses with a hearing on the question of costs.

(2) In proceedings 2023/00409049 (the Builder's application) order 2 made in the proceedings below on 11 June 2024 (requiring Yuan Yeh and Huang Yeh, the Homeowners to pay the costs of Bazdaric Homes Pty Ltd on the ordinary basis as agreed or as assessed), is affirmed.

(3) In respect of proceedings 2023/00379121 (the Homeowners' application) order 2 made in the proceedings below on 11 June 2024 is set aside and in its place the Appeal Panel orders that Bazdaric Homes Pty Ltd is to pay Yuan Yeh and Huang Yeh their costs on the ordinary basis as agreed or as assessed.

(4) In respect of both appeals, Bazdaric Homes Pty Ltd is to pay to Yuan Yeh and Huang Yeh their costs incurred in respect of both appeals on the ordinary basis up to and including 15 May 2024 and thereafter on the indemnity basis, as agreed or as assessed.

(5) Bazdaric Homes Pty Ltd is to pay to Yuan Yeh and Huang Yeh the sum of $68,558.04 within 14 days of the publication of these orders.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.