Stepanoski v Aslan (No 6) - [2020] NSWSC 900

Supreme Court

New South Wales

Medium Neutral Citation: Stepanoski v Aslan (No 6) [2020] NSWSC 900
Hearing dates: 13, 24 February 2020; 7 May 2020 (Submissions)
Date of orders: 16 July 2020
Decision date: 16 July 2020
Jurisdiction: Equity
Before: Emmett AJA
Decision:
1. Direct the entry of judgment for the Plaintiffs against the Defendant in the sum of $2,698,656.28 in lieu of the judgment entered on 11 December 2018 (Stepanoski v Aslan(No 2) [2018] NSWSC 1916).
2. Order the Defendant to pay the Plaintiffs’ costs of the proceedings, save for any costs attributable to the application by the Plaintiffs for leave to reopen.

Catchwords:
DAMAGES — Quantification of damages to which the plaintiffs or defendant would be entitled — Variation of earlier judgment — Reformulation of quantum after reopening of case granted to read and tender additional evidence on damages

Legislation Cited:
Evidence Act 1995 (NSW), s 79

Cases Cited:
Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3
Robinson v Harman (1848) 1 Exch 850; 154 ER 363
Stepanoski v Aslan [2018] NSWSC 1160
Stepanoski v Aslan (No 2) [2018] NSWSC 1916
Stepanoski v Aslan (No 3) [2019] NSWSC 1445
Stepanoski v Aslan (No 4) [2019] NSWSC 1859
Stepanoski v Aslan (No 5) [2020] NSWSC 139
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8

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/Cross Defendants)
D C Eardley (Defendant/Cross Claimant)
Solicitors:
Redenbach Lee Lawyers (Plaintiffs/ Cross Defendants)
Stewart & Associates (Defendant/Cross Claimant)

File Number(s): 2016/139580

Judgment

This is the sixth judgment in the resolution of the dispute between the plaintiffs, Mr Tony Stepanoski and Mrs Sonia Stepanoski (the Owners), and the defendant, Mr Jamal Aslan (the Builder), arising out of a building contract made between the Owners and the Builder. On 30 July 2018, I published my reasons for concluding that the contract between the parties was a Lump Sum Contract rather than a Cost Plus Contract. [1] The Owners then sought the entry of judgment for damages for breach of contract by the Builder for such amounts as were not disputed by the Builder. On 11 December 2018, I directed the entry of judgment for the Owners against the Builder in the sum of $225,710.38 and reserved the further hearing of the balance of the Owners’ claim. [2] However, I subsequently ordered that enforcement of that judgment be stayed.
1. See Stepanoski v Aslan [2018] NSWSC 1160.
2. See Stepanoski v Aslan (No 2) [2018] NSWSC 1916.
On 28 October 2019, I published my reasons for the conclusions that I had reached at that stage on the question of the assessment of damages payable by the Builder to the Owners. [3] I reserved the question of costs and gave…

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.

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Details

Case: [2020] NSWSC 900
Decision Date: 16 July 2020

CaseChat Overview and Summary

The case of Stepanoski v Aslan (No 6) was heard in the Supreme Court of Victoria. The parties involved were the plaintiffs, Stepanoski, and the defendant, Aslan. The dispute pertained to the calculation of damages awarded in a previous judgment, specifically focusing on the quantification of damages to which the plaintiffs or the defendant would be entitled. The previous judgment had been reopened to allow for the reading and tendering of additional evidence regarding damages.

The primary legal issues before the court were whether the additional evidence provided a sufficient basis for varying the original damages assessment and how this new evidence should be integrated into the calculation. The court had to determine whether the reopening of the case was warranted and if the new evidence was reliable and relevant. Furthermore, it was necessary to establish whether the new evidence warranted a reformulation of the quantum of damages.

In addressing these issues, the court considered the procedural fairness in reopening the case and the admissibility of the additional evidence. The court concluded that the new evidence was relevant and credible, justifying a variation of the earlier judgment. The court then proceeded to reformulate the quantum of damages by integrating the new evidence into the calculation. The result was a revised amount of damages awarded to the plaintiffs, reflecting the impact of the additional evidence on the overall assessment.

The final orders of the court included a variation of the earlier judgment to reflect the new quantum of damages, taking into account the additional evidence presented. The court's decision provided clarity on the procedure for reopening cases to incorporate new evidence and the standards for assessing the admissibility and impact of such evidence on the final damages award.

Orders