Huo v Super Shepherd Pty Ltd

[2025] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:

Huo v Super Shepherd Pty Ltd [2025] NSWDC 286

Hearing dates:

1 July 2025

Date of orders:

6 August 2025

Decision date:

06 August 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1) The first defendant is to pay to the plaintiff damages in the sum of $779,798.29.

(2) The first defendant is to pay to the plaintiff pre-judgment interest in the sum of $164,474.96.

(3) The first defendant is to pay the plaintiff’s costs of this assessment of damages.

Catchwords:

CONSUMER LAW – misleading or deceptive conduct – assessment of damages for breach of s 18 of the Australian Consumer Law

Legislation Cited:

Australian Consumer Law

Civil Procedure Act 2005

Home Building Act 1989

Cases Cited:

Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494

Wardley Australia Ltd v Western Australia (“Rothwell’s Loan case”) [1992] HCA 55; (1992) 175 CLR 514

Category:

Principal judgment

Parties:

Jingmin Huo (Plaintiff)
Super Shepherd Pty Ltd (First Defendant)
Chun Ting Lee (Second Defendant)
Tony Truong (Third Defendant)
Tony Truong Pty Ltd ATF the Tony Truong Family Trust (ACN 158 240 129) (Fourth Defendant)

Representation:

Solicitors:
Kammoun Sukari Lawyers (Plaintiff)

File Number(s):

2024/00368523

Publication restriction:

Nil

JUDGMENT

Background

The claim

1. The plaintiff is the owner of residential premises (‘the property’). The first defendant is a builder (‘Super Shepherd’).

2. The plaintiff and Super Shepherd entered into a contract on 27 May 2021 for Super Shepherd to perform building works (‘the building works’) at the property for a fixed contract price of $556,000, inclusive of GST (‘the contract’).

3. The contract was varied on 17 June 2022 and the fixed contract price was changed to $683,493.13, inclusive of GST (‘the varied contract’).

4. Between May 2021 and June 2022, Super Shepherd and the second defendant, Mr Chun Ting Lee (‘Mr Lee’), a former director and secretary of Super Shepherd, represented to the plaintiff that Super Shepherd was licensed and that the building works undertaken under the contract and the revised contract would be insured with HBCF Insurance (‘the licence and insurance representations’).

5. The plaintiff paid Super Shepherd a total of $443,493.43 between 24 January 2022 and 19 September 2022 under the contract and the varied contract.

6. The plaintiff relied upon the licence and insurance representations when she entered into the contract and the varied contract and when she paid Super Shepherd sums totalling $443,493.43.

7. The license and insurance representations were misleading or deceptive or likely to mislead or deceive because the licence and insurance representations were false. Super Shepherd was not licenced as a builder at any relevant time and the building works were not insured with HBCF Insurance.

8. Super Shepherd engaged in misleading and deceptive conduct in trade or commerce in relation to the contract and the varied contract with the plaintiff, contrary to s 18 of the Australian Consumer Law (‘ACL’).

9. Super Shepherd stopped work at the property in March 2023 and has not returned.

10. In the course of the work it undertook on the property, Super Shepherd caused damage to a brick wall on the boundary with the residential property neighbouring the plaintiff’s land.

11. The building works performed by Super Shepherd were defective and substantially incomplete.

12. The plaintiff has suffered loss and damage.

Judgment on liability

13. On 27 May 2025 the following default judgment was given in the District Court:

Judgment:

Super Shepherd Pty Ltd, First Defendant is liable to Jingmin Huo, First Plaintiff, for damages and costs.

Damages to be assessed.

1.   Judgment for the Plaintiff against the first defendant for damages as referred to in the Amended Statement of Claim filed 9/4/2025 to be assessed.

2.   The first defendant to pay the plaintiff’s costs.

Assessment of Damages

14. Super Shepherd did not participate in the hearing in relation to the assessment of damages.

15. The plaintiff relied upon the following documents in relation to the assessment of damages:

1. The Amended Statement of Claim,

2. The affidavit of Ms Huo affirmed on 26 April 2024,

3. Tab 13 of Exhibit JH-1 to Ms Huo’s affidavit of 26 April 2024,

4. The affidavit of Ms Huo affirmed on 7 March 2025,

5. Exhibit JH-2 to Ms Huo’s affidavit of 7 March 2025.

16. The plaintiff’s damages for the first defendant’s breach of s 18 of the Australian Consumer Law were claimed and will be assessed on the basis of the economic loss suffered by the plaintiff on account of her reliance on the misleading or deceptive conduct of Super Shepherd (see Wardley Australia Ltd v Western Australia (“Rothwell’s Loan case”) [1992] HCA 55; (1992) 175 CLR 514 at [1] and Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at [39] – [55]).

17. The plaintiff claimed further, and in the alternative, for breaches of the contract and the varied contract and breaches of the Home Building Act 1989 Statutory Warranties.

18. The plaintiff obtained a quote from Macquarie Constructions Group (‘MCG’), a licenced builder, in May 2021, prior to entering into the contract. MCG’s quote was for the same building works as were the subject of the contract and the varied contract and the offered price was $558,503. MCG offered a written contract to the plaintiff on 17 May 2021.

19. On 29 February 2024, the plaintiff entered into a contract (‘the Felixland contract’) with Felixland Pty Ltd, a licenced builder, for the carrying out of the balance of the works which were required to be performed, but had not been performed, under the contract and the revised contract. The remedial contract was a fixed price contract and the price was $770,000.

20. The plaintiff submitted that she lost the opportunity to engage MCG as a result of Super Shepherd’s misleading and deceptive conduct. Had she engaged MCG, she would have had a licenced builder complete the works for $558,503. Instead, on account of the misleading and deceptive conduct, she paid $443,493.43 to Super Shepherd plus $770,000 to Felixland to complete the works Super Shepherd should have completed under the contract or the varied contract. The plaintiff submits that her loss is therefore $654,990.43 (being $558,503 + $770,000 = $1,213,494.43 - $558,503 = $654,990.43). An alternative way of expressing this is to say that the difference between what the plaintiff paid to Felixland ($770,000) and what she would have paid to MCG ($558,503) is $211,497. This should be added to the amount paid to Super Shepherd, being $443,493.43, totalling $654,990.43.

21. Under the written contract offered by MCG, the date of practical completion of the building works would have been about 1 August 2022. The plaintiff has always intended to live on the property upon the completion of the works.

22. Super Shepherd’s failure to complete the works has caused the plaintiff to have to rent alternative premises. Between 1 August 2022 and 3 February 2025, the plaintiff paid $105,512.86 in rent. From 4 February 2025 to 27 May 2025, the plaintiff has paid or is required to pay $14,400 in rent ($900 for 16 weeks). The total rent claimed is $119,912.86.

23. The plaintiff investigated and rectified the damage caused by Super Shepherd to the brick wall between her and her neighbour’s property at the cost of $4,895.

24. The total loss and damage claimed by the plaintiff is $779,798.29 ($654,990.43 + $119,912.86 + $4,895).

25. The plaintiff claims interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) until 27 May 2025 on the following basis:

1. On $211,497 (see [20] above) from 27 May 2021, being the date of the contract – a sum of $55,528.68,

2. On $443,493.43, interest is claimed from the date of each payment to Super Shepherd in the following sums:

1. $46,026.30 from 24 January 2022 - a sum of $10,833.08,

2. $97,467.13 from 17 June 2022 – a sum of $21,363.99,

3. $100,000 from 18 July 2022 - a sum of $21,536.03,

4. $100,000 from 19 August 2022 – a sum of $21,110.82, and

5. $100,000 from 19 September 2022 – a sum of $20,698.90.

3. On the rent of $119,921.86, interest is claimed from the date of each payment to the landlord, which yields a sum of $12,783.55 in interest.

4. On the $4,895 spent in relation to the wall with the neighbour, interest is claimed from the date of each payment to the third party contractor:

1. $2,915 paid to Partridge Structural Pty Ltd from 30 May 2023 – a sum of $478.60 in interest.

2. $1,980 paid to Peco Masonry from 24 July 2024 – a sum of $139.31 in interest.

26. The total interest claimed is $164,472.96.

27. The total claim, including interest, is $944,271.25.

Conclusion and Orders

28. Having regard to the evidence provided, I am satisfied that the plaintiff has suffered economic loss in the sum of $779,798.29, in accordance with the plaintiff’s submissions. I am further satisfied that pre-judgment interest in the sum claimed of $164,474.96 should be awarded.

29. The following orders will issue:

1. The first defendant is to pay to the plaintiff damages in the sum of $779,798.29.

2. The first defendant is to pay to the plaintiff pre-judgment interest in the sum of $164,474.96.

3. The first defendant is to pay the plaintiff’s costs of this assessment of damages.

**********