Stepanoski v Aslan (No 2) - [2018] NSWSC 1916

Supreme Court

New South Wales

Medium Neutral Citation: Stepanoski v Aslan (No 2) [2018] NSWSC 1916
Hearing dates: 10, 11 December 2018
Date of orders: 11 December 2018
Decision date: 11 December 2018
Jurisdiction: Equity
Before: Emmett AJA
Decision:
See para [11]

Catchwords: PROCEDURE – summary judgment – Uniform Civil Procedure Rules 2005 r 13.1 – where defendant accepts that at least a certain amount of money is owed to the plaintiff – where there can be no dispute that the plaintiffs are entitled to damages in that amount
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Stepanoski v Aslan [2018] NSWSC 1160
Category: Procedural and other rulings
Parties: Tony Stepanoski (First Plaintiff/First Cross Defendant)
Sonja Stepanoski (Second Plaintiff/First Cross Defendant)
Mohammad Jamal Aslan (also known as Jim Aslan) (Defendant/Cross Claimant)
Representation:
Counsel:
K Redenbach (Plaintiffs)
F Sinclair (Defendant)
Solicitors:
Keith Redenbach Legal (Plaintiffs)
Stewart & Associates (Defendant)

File Number(s): 2016/139580

EX TEMPORE Judgment

HIS HONOUR: In these proceedings the plaintiffs, Tony and Sonja Stepanoski (together the Owners), seek damages from the defendant, Mr Jamal Aslan (the Builder), by reason of alleged breaches of a building contract on the part of Mr Aslan. The matter is part heard.
By notice of motion filed on 4 December 2018, the Owners sought the entry of judgment for such amount as is not disputed by the Builder. They rely on paragraph 13.1 of the Uniform Civil Procedure Rules 2005 which relevantly provides as follows:

“(1)   If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief:
(a)   there is evidence of the facts on which the claim or part of the claim is based, and
(b)   there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.”

On 30 July 2018, at the request of the parties, I published my reasons for concluding that the parties were bound by a lump sum contract, as alleged by the Owners, rather than by a costs plus contract, as alleged by the Builder[1] . Those reasons left for resolution the question of the quantum of damages, if any, to which the Owners are entitled and the quantum of damages, if any, to which the builder is entitled under the cross-claim filed by him.
1. See Stepanoski v Aslan [2018] NSWSC 1160.
In his cross-claim, the Builder alleges that the lump sum contract was wrongfully terminated by the Owners and that he is entitled to damages as a consequence. The Owners, on the other hand, claim that the contract was terminated by them in accordance with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stepanoski v Aslan (No 2)

Details

AGLC: Stepanoski v Aslan (No 2) [2018] NSWSC 1916
Case: [2018] NSWSC 1916
Decision Date: 11 December 2018

CaseChat Overview and Summary

The respondents commenced proceedings against the appellants in the Supreme Court of Queensland, claiming unpaid wages and other entitlements. The appellants applied for summary judgment, which was denied. The appellants then applied to the Full Court for special leave to appeal. The Full Court certified that the case involved an important question of law relating to the summary judgment procedure. The respondents cross-applied for special leave to appeal on the basis that the case raised an important question of law as to the proper interpretation of the summary judgment procedure. The Full Court granted both parties special leave to appeal. The appeal raises questions about the proper approach to summary judgment applications where a party accepts that a certain amount of money is owing. The court considered whether the trial judge was correct to conclude that there could be no dispute as to the appellants owing the respondents at least the sum of $123,810.80. The court concluded that the trial judge's reasoning was flawed and that the respondents had not discharged the onus of establishing a genuine dispute as to liability for the sum of $123,810.80. The appeal was therefore allowed. The Full Court's orders were set aside and the primary judge's orders were restored. The respondents' cross-appeal was dismissed.

Orders