Aslan v Stepanoski

Case [2022] NSWCA 24

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Aslan v Stepanoski [2022] NSWCA 24
Hearing dates: 18 August 2021 and 13 December 2021
Date of orders: 25 February 2022
Decision date: 25 February 2022
Before: Macfarlan JA at [1];
Gleeson JA at [106];
Payne JA at [107]
Decision:

(1) Allow the appeal.

(2) Set aside Orders 1 and 2 made by Emmett AJA on 16 July 2020.

(3) Judgment for the Builder on the Owners’ claim against him.

(4) Judgment for the Builder against the Owners in the sum of $50,000.

(5) Order the Owners to pay the Builder’s costs of the proceedings at first instance and on appeal.

Catchwords:

CONTRACTS – repudiation – whether the Builder repudiated the Lump Sum Contract – whether the Builder’s claim for payment under the Lump Sum Contract constituted repudiation – whether the Builder’s “failure to resume work” constituted repudiatory conduct

RESTITUTION – mistake – restitution of money paid by the Owners to the Builder – whether a comparison of sums paid under the Lump Sum Contract with the value of the work completed revealed whether there had been an overpayment by the Owners to the Builder

CIVIL PROCEDURE – Owners sought leave to reopen case after judgment to tender additional evidence concerning loss – election had been made to claim damages on a particular basis – whether there were special circumstances that justified departure from the ordinary rule that a party is bound by the case that it conducts to judgment

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), s 96

Cases Cited:

Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2021] NSWCA 162

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Carter v Mehmet [2021] NSWCA 286

Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2013] HCA 44; (2013) 87 ALJR 1159

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12

Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23

Mann v PatersonConstructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32

Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36

Turner Corporation Limited (Receiver and Manager Appointed) v Austotel Pty Limited (1994) 13 BCL 378

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481

Category:Principal judgment
Parties: Mohammad Jamal Aslan (also known as Jim Aslan) (Appellant)
Tony Stepanoski (First Respondent)
Sonja Stepanoski (Second Respondent)
Representation:

Counsel:
L Chan / K Sharma (Appellant)
P Folino-Gallo (Respondents)

Solicitors:
Redenbach Legal (Respondents)
File Number(s): 2020/00237337
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity
Citation:

[2018] NSWSC 1916;

[2019] NSWSC 1445;

[2020] NSWSC 139;

[2020] NSWSC 900

Date of Decision:
11 December 2018

Continue reading Aslan v Stepanoski

Sign in free to access the full text

Details
AGLC
Aslan v Stepanoski [2022] NSWCA 24
Case
[2022] NSWCA 24
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a builder and owners regarding a lump sum contract for building works. The owners alleged that the builder had repudiated the contract, and they sought the restitution of money paid to the builder, claiming an overpayment based on the value of work completed. The builder counterclaimed for outstanding payments.

The Court of Appeal was required to determine whether the builder’s claim for payment under the contract constituted repudiatory conduct, and whether the builder’s alleged failure to resume work also amounted to repudiation. Additionally, the court considered whether the owners had made an election to claim damages on a particular basis, and if there were special circumstances justifying the reopening of the case after judgment to tender additional evidence concerning loss. The court also had to assess whether the sums paid by the owners to the builder exceeded the value of the work completed, thereby entitling the owners to restitution.

The Court of Appeal found that the builder's claim for payment did not amount to repudiation, nor did the failure to resume work in the circumstances constitute repudiatory conduct. The court held that the owners had elected to pursue their claim on a specific basis and that no special circumstances justified departing from this election to allow further evidence on loss. The court concluded that the owners had not established an overpayment and therefore were not entitled to restitution.

Consequently, the appeal was allowed, and the orders of the first instance judge were set aside. Judgment was entered for the builder on the owners’ claim, and judgment was entered for the builder against the owners in the sum of $50,000. The owners were ordered to pay the builder’s costs of the proceedings at first instance and on appeal.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside Orders 1 and 2 made by Emmett AJA on 16 July 2020.

(3) Judgment for the Builder on the Owners’ claim against him.

(4) Judgment for the Builder against the Owners in the sum of $50,000.

(5) Order the Owners to pay the Builder’s costs of the proceedings at first instance and on appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.