Aslan v Stepanoski

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.