Stepanoski v Aslan (No 4) - [2019] NSWSC 1859

Supreme Court

New South Wales

Medium Neutral Citation: Stepanoski v Aslan (No 4) [2019] NSWSC 1859
Hearing dates: 18 December 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1.   The balance of the defendant's notice of motion filed 5 March 2019 be dismissed with costs.
2.   The balance of the plaintiffs’ notice be dismissed.
3.   The stay on the interim Judgment in favour of the plaintiffs in the sum of $225,710.38 be lifted.
4.   Costs of today be paid by the defendant on the indemnity basis.

Catchwords: CIVIL PROCEDURE – Stay of proceedings – Suspending stay – Whether prejudice would be suffered by the defendant if stay was lifted – Whether reasons advanced as to why stay should continue.
Cases Cited: Stepanoski v Aslan [2018] NSWSC 1160
Stepanoski v Aslan (No 2) [2018] NSWSC 1916
Stepanoski v Aslan (No 3) [2019] NSWSC 1445
Category: Procedural and other rulings
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:
M W Gradidge (Sol) (Plaintiffs)
D C Eardley (Defendant)
Solicitors:
Keith Redenbach Legal (Plaintiffs)
Stewart & Associates (Defendant)

File Number(s): 2016/139580

EX TEMPORE Judgment

HIS HONOUR: These proceedings have had a somewhat delayed history. On 30 July 2018 I published my reasons for concluding that the contract between the plaintiffs and the defendant was a lump sum contract rather than a cost plus contract[1] . The intention was that the parties would then enter into discussions concerning the consequences that flowed from that determination or alternatively prepare for further hearing of any claim by the plaintiffs to be entitled to damages as a consequence of the determination.
1. See Stepanoski v Aslan [2018] NSWSC 1160.
That led to the filing by the plaintiffs on 4 December 2018 of a notice of motion for the entry of judgment for such amount as was not disputed by the defendant. On 11 December 2018, after hearing from the plaintiffs, I directed the entry of judgment for them against the defendant in the sum of $225,710.38[2] . While counsel for the defendant raised the possibility of an extended time for payment, no evidence was adduced upon which such an order could be based and no order was made. Subsequently the defendant indicated that there may have been some misapprehension of the defendant’s stance in relation to the amount disputed.
2. See Stepanoski v Aslan (No 2) [2018] NSWSC 1916.
After further argument on several different hearing days, I ordered a stay of the judgment on 16 April 2019 and gave directions for the further preparation of the proceedings for the hearing of the plaintiffs’ claim for damages and the defendant’s claim to certain offset amounts. Following a further hearing and evidence, I published my reasons for concluding that the plaintiffs were entitled to reimbursement of an overpayment made by them to the defendant and were entitled to damages[3]…

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 4)

Details

AGLC: Stepanoski v Aslan (No 4) [2019] NSWSC 1859
Case: [2019] NSWSC 1859
Decision Date: 18 December 2019

CaseChat Overview and Summary

The parties involved in this case are Stepanoski and Aslan. The nature of the dispute pertains to a stay of proceedings in a civil case. The court involved is the Supreme Court of New South Wales. The case involves a complex history of litigation between the parties, with multiple interlocutory applications and stays being granted and lifted over time.

The legal issues before the court were whether the stay of proceedings should be lifted and whether the defendant, Aslan, would suffer prejudice if the stay was lifted. The court was required to consider the reasons advanced by the parties for why the stay should or should not continue. The court had to determine whether the reasons provided were sufficient to warrant a continuation of the stay.

The court found that the reasons provided by the plaintiff, Stepanoski, for why the stay should continue were not sufficient to warrant a continuation of the stay. The court found that the defendant, Aslan, would not suffer prejudice if the stay was lifted. The court noted that the stay had been in place for a significant period of time and that the plaintiff had not advanced any compelling reasons as to why the stay should continue. The court held that the stay should be lifted and that the proceedings should continue. The court ordered that the stay of proceedings be lifted and that the matter proceed to trial.

Orders