Stepanoski v Aslan (No 2)
[2018] NSWSC 1916
•11 December 2018
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:
Solicitors:
K Redenbach (Plaintiffs)
F Sinclair (Defendant)
Keith Redenbach Legal (Plaintiffs)
Stewart & Associates (Defendant)
File Number(s): 2016/139580
EX TEMPORE Judgment
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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.
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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.”
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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.
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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 its terms and that they are entitled to damages calculated by reference to the notional costs that would have been incurred in order to complete the building works under the lump sum contract.
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The Builder accepts that, although $1,067,094.28 has been paid by the Owners in respect of the contract sum of $1,080,000, the work required to complete the contract was no more than some 57 per cent completed. The Owners contend that the work was no more than 48 per cent completed, and possibly less. Clearly enough, there remain further questions to be resolved following further evidence and hearing.
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The parties have retained consultant builders to give opinion evidence as to the quantification of damages and meetings have taken place between the respective consultants on three occasions. Those meetings resulted in a joint report dated 11 October 2018 by Mr Michael Sanig, on behalf of the Owners, and Dr Patrick O'Donnell, on behalf of the Builder. It emerges from the joint report that the Builder, through Dr O'Donnell, accepts that the cost to complete the works under the lump sum contract would be at least $471,244.10. The Owners, through Mr Sanig, claim that more would have been required. However, the effect of the joint report is that Dr O'Donnell accepts that at least the sum of $471,244.10 would be payable by the Builder to the Owners, apart from any cross-claim by the Builder.
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By his cross-claim, however, the Builder asserts that he has suffered damage as a consequence of wrongful termination of the lump sum contract. As I have said, that question is hotly disputed. Although there is presently no evidence of the matters before me, the Builder has claimed in his cross-claim that he has incurred loss and damage as a result of what he alleges is the wrongful termination, as follows:
cost of hire to 11 July 2016: $23,188;
additional hire cost: $15,000;
cost of additional waste bins: $5,000;
cost of additional insurance premiums: $3,800;
amount outstanding under progress claim 5, $48,545.72; and
loss of profit on completion of the work, $150,000.
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Those items amount to $245,533.72. On the basis that Dr O’Donnell accepts that at least $471,244.10 was required to complete the work, it must follow that there can be no dispute that the Owners are entitled to damages from the Builder of at least the difference between those two amounts, namely, $225,710.38, which means that judgment should be entered for that sum.
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In the circumstances I have outlined above, it appears to me that it is appropriate for the court to give judgment for the Owners against the Builder in the sum of $225,710.38. That represents, on the basis indicated, the minimum amount to which the Owners are entitled. The entry of judgment for that amount would not be in any way prejudicial to the Owners’ entitlement to press for the entry of judgment for a further amount representing the amount of damages finally assessed.
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Counsel for the Builder raised the possibility of an extended time for payment. However, there is no evidence before me of any basis upon which such an order would be justified. It would nevertheless be open to the Builder, as judgment debtor, to make such application as he is advised, supported by appropriate evidence, seeking time to pay the amount of any judgment that might be entered.
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I make the following orders:
Direct the entry of judgment for the plaintiffs against the defendant in the sum of $225,710.38.
Reserve to the plaintiffs for further hearing the balance of the claim made in their Technology and Construction List Statement.
Reserve to the defendant for further hearing the claims made in his Technology and Construction List Cross-claim Statement.
Reserve the question of costs of the motion and the further conduct of the proceedings.
List the proceedings for directions generally at 9.45am on 5 February 2019.
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Endnote
Decision last updated: 11 December 2018
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