Stepanoski v Aslan (No 3) - [2019] NSWSC 1445

Supreme Court

New South Wales

Medium Neutral Citation: Stepanoski v Aslan (No 3) [2019] NSWSC 1445
Hearing dates: 25, 26 June 2019; Submissions 9 August 2019
Decision date: 28 October 2019
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1. Direct the plaintiffs to file and serve no later than 4 November 2019, any evidence on which they wish to rely in relation to costs together with draft orders and any submissions in support.
2. Direct the defendant to respond no later than 11 November 2019 together with evidence and written submissions.
3. List the matter for any further directions and judgment on Thursday 14 November 2019 at 9.45 am.

Catchwords:
CONTRACTS – extent to which defendant has been overpaid for work that had been completed before the Lump Sum Contract was terminated – whether the Lump Sum Contract was wrongly terminated by the plaintiffs or whether it was repudiated by the defendant.
DAMAGES – quantification of damages to which the plaintiffs or defendant would be entitled – differences in opinion evidence of expert witnesses – resolving differences without detailed cross-examination.
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: ASIC v Rich (2005) 190 FLR 242; [2005] NSWSC 149
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Stepanoski v Aslan [2018] NSWSC 1160
Stepanoski v Aslan (No 2) [2018] NSWSC 1916
Summers v Commonwealth (1918) 25 CLR 144; [1918] HCA 33
Category: Consequential orders (other than Costs)
Parties: Tony Stepanoski (First Plaintiff/First Cross Defendant)
Sonja Stepanoski (Second Plaintiff/Second Cross Defendant)
Mohammad Jamal Aslan (also known as Jim Aslan) (Defendant/Cross Claimant)
Representation:
Counsel:
P Folino-Gallo (Plaintiffs)
D C Eardley (Defendant)
Solicitors:
Keith Redenbach Legal (Plaintiffs)
Stewart & Associates (Defendant)

File Number(s): 2016/139580

Judgment

Introduction

On 30 July 2018, I published my reasons (the Principal reasons)[1] for concluding that the plaintiffs, as Owners, and the defendant, as Contractor, were, no later than 12 January 2015, bound by the terms of an agreement, defined in the Principal Reasons as the Lump Sum Contract. In these reasons, I shall use terms as they were defined in the Principal Reasons. I indicated in the Principal Reasons that it would be necessary for the parties to formulate the further questions that remained to be resolved. After considerable further directions and hearings, further questions for resolution were identified and my decisions in relation to those questions follow.
1. See [2018] NSWSC 1160.
The Lump Sum Contract provided for the completion of the Works by Mr Aslan for the contract price of $1,080,000, However, it is common ground that the Lump Sum Contract was terminated by a letter dated 1 May 2016 from the solicitors for Mr and Mrs Stepanoski to Mr Aslan, prior to the completion of the Works. The letter of 1 May 2016 is not in evidence. The first further question for resolution concerns the extent to which Mr Aslan has been overpaid for the work…

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 3)

Details

AGLC: Stepanoski v Aslan (No 3) [2019] NSWSC 1445
Case: [2019] NSWSC 1445
Decision Date: 28 October 2019

CaseChat Overview and Summary

The case of Stepanoski v Aslan (No 3) involves the parties Stepanoski as the plaintiff and Aslan as the defendant. The dispute revolves around the termination of a Lump Sum Contract and the extent to which the defendant had been overpaid for work completed prior to the termination. The matter was heard in the Supreme Court of Victoria. The primary legal issues that the court was required to decide included whether the Lump Sum Contract was wrongly terminated by the plaintiffs or whether it was repudiated by the defendant. Additionally, the court had to quantify the damages to which either party would be entitled.

The court considered the evidence and arguments presented by both parties, including the differing opinions of expert witnesses. In resolving the disputes, the court focused on the nature of the contract and the circumstances surrounding its termination. The court examined whether the plaintiffs had valid grounds for terminating the contract and whether the defendant's actions constituted a repudiation of the contract. In resolving the differences in expert opinion, the court relied on the available evidence and the principles of contract law without the need for detailed cross-examination. Ultimately, the court found that the Lump Sum Contract was wrongfully terminated by the plaintiffs and that the defendant was not entitled to the full amount of payment claimed for work completed before the termination.

The court determined the appropriate quantum of damages for both parties. For the plaintiffs, the court awarded damages for the breach of contract, while for the defendant, the court assessed the reasonable value of the work completed before the wrongful termination. The court carefully considered the evidence and expert opinions to arrive at a just and equitable outcome. In conclusion, the final orders of the court included a determination that the Lump Sum Contract was wrongly terminated, an award of damages to the plaintiffs, and an order for the defendant to pay a specified amount reflecting the reasonable value of the work completed prior to the termination.

Orders