Ceerose Pty Ltd v The Owners – Strata Plan No 89074

[2025] NSWCA 235

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Remedies
3. › Damages
4. › Mitigation of loss
5. › Onus of proof
6. › Whether conduct was unreasonable in the circumstances such that some or all of the claimed loss should be disregarded
7. › Whether owner had positive obligation to provide builder opportunity to rectify defects
8. › Whether evidentiary onus shifted to plaintiff once defendant established refusal of access
9. › Home Building Act 1989 (NSW), ss 18B, 18BA
1. Civil Procedure
2. › Alternative dispute resolution
3. › Court referral to referee
4. › Adoption of referee's report
5. › Claimed denial of procedural fairness
6. › Whether referee relied on evidence contrary to earlier ruling
7. › Whether procedural ambush established
8. › Uniform Civil Procedure Rules 2005 (NSW), r 20.24
1. Evidence
2. › Onus of proof
3. › Tactical onus
4. › Shifting onus
5. › Whether invocation of shifting or tactical onus misconceived

Quick Take

In building defect disputes, the builder bears both the legal and evidential onus of proving the owner's failure to mitigate from beginning to end; the owner's refusal to allow the builder to rectify defects is a relevant fact but does not shift any onus to the owner to justify its refusal.