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

1. 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.

2. 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.

3. 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] .

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

4. On 28 October 2019 I directed the plaintiffs to file and serve any evidence on which they wished to rely in relation to costs together with draft orders and gave directions for the defendant to respond. That led to the question of re-opening by the plaintiff in relation to their claim for damages and in due course to the filing by the plaintiffs on 21 November 2019 of a further motion. By that motion, the plaintiffs sought an order that the motions that were then outstanding, being the balance of the defendant’s notice of motion of 5 March 2019 and the balance of the plaintiff’s notice, be dismissed. Nothing has been advanced on behalf of either party as to why those motions should not be dismissed and I propose to order that they be dismissed.

5. The third prayer in the motion of 21 November 2019 was that the stay that I ordered on 16 April 2019 be lifted. So long as the stay operates it would not be open to the plaintiffs to press proceedings that may lead to the bankruptcy of the defendant. Nor, apparently, is it open to them to make insurance claims in respect of the default of the defendant. The defendant opposed the lifting of the stay, or alternatively, asked that the stay be limited to 90 days. However, no reason was advanced as to why the stay should continue at all.

6. Indeed I really did not understand there to be any reason advanced other than that the defendant would prefer not to have a judgment against him at this time. No suggestion was made on behalf of the defendant that any particular prejudice would be suffered other than the fact that a judgment could be enforced. On the other hand delay is clearly of prejudice to the plaintiffs. In all of the circumstances, I do not see any reason why the stay should continue and accordingly I propose to rescind the stay.

7. The plaintiffs ask for the costs of today on the indemnity basis. They base that application on a proposal put to the defendant yesterday that the defendant consent to the orders that I have now made in relation to prayer 3. More significantly, it seems to me, today’s hearing was completely unnecessary. Nothing further has been said today that could not have been said last time, on 12 December 2019, when the matter was last before me. Through his counsel, the defendant asked for an adjournment on the basis that instructions had not been provided. That was a matter for the defendant. There is no suggestion that the defendant was unaware of the hearing on 12 December 2019, and indeed, as I have said, his counsel was present. Counsel asked that the question of the lifting of the stay be deferred for a week so that further instructions could be obtained. It is apparent that there was no further matter that the defendant could have provided to his counsel as a justification for resisting prayer 3 of the motion.

8. In all of the circumstances it seems to me that today’s hearing was completely unnecessary and was brought about solely by the actions of the defendant in asking for an adjournment. In the circumstances I consider it is appropriate to order that the costs of today be paid by the defendant on the indemnity basis.

9. The motion of 21 November 2019 also seeks an order that the plaintiffs be entitled to rely on further evidence that has not yet been admitted. Those prayers for relief have been stood over to the new term and it is unnecessary to say anything further about those at this stage.

10. The orders that I propose are as follows:

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.   Order that the defendant to pay the plaintiffs’ costs of today on the indemnity basis

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Endnotes

Decision last updated: 19 December 2019