Aslan v Stepanoski [2022] NSWCA 24

Aslan v Stepanoski [2022] NSWCA 24

The appeal was allowed because the Owners did not establish that the Builder's Progress Claim 4 or Second Notice claimed amounts to which he was not entitled under the Lump Sum Contract, nor that the Builder's conduct objectively evinced an intention no longer to be bound by that contract. There was evidence that the Owners locked the Builder out of the site, so his failure to resume work could not be treated as repudiatory. The restitutionary claim also failed because comparing total payments with the assessed value of work did not determine whether payments were inconsistent with the parties' contractual regime.

Jurisdiction
Australia
Judgment Date
25 February 2022
Procedural Posture
Appeal in Proceedings Concerning a Home Building Contract / Appeal From Orders of the Supreme Court of New South Wales, Equity Division
Outcome
Appeal allowed.
Legal Topics
['repudiation of Contract' 'progress Claims Under Lump Sum Building Contract' 'payment Under Mistake' 'leave to Reopen Case After Judgment' 'damages for Incomplete Building Works']
['contracts' 'restitution' 'civil Procedure' 'building and Construction'] ['repudiation of Contract' 'progress Claims Under Lump Sum Building Contract' 'payment Under Mistake' 'leave to Reopen Case After Judgment' 'damages for Incomplete Building Works']

Case Brief

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Procedural Posture

Appeal in Proceedings Concerning a Home Building Contract / Appeal From Orders of the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the Builder repudiated the Lump Sum Contract by making Progress Claim 4, giving the Second Notice, ceasing work or failing to resume work.' "Whether the Owners' payments to the Builder were recoverable to the extent that they exceeded the value of the work done." 'Whether the Owners should have been granted leave after judgment to reopen their case to tender additional evidence concerning alleged loss.' 'Whether loss of profits on resale was too remote under Hadley v Baxendale.' 'Whether damages for rental loss were properly awarded.']

Ratio Decidendi

The appeal was allowed because the Owners did not establish that the Builder's Progress Claim 4 or Second Notice claimed amounts to which he was not entitled under the Lump Sum Contract, nor that the Builder's conduct objectively evinced an intention no longer to be bound by that contract. There was evidence that the Owners locked the Builder out of the site, so his failure to resume work could not be treated as repudiatory. The restitutionary claim also failed because comparing total payments with the assessed value of work did not determine whether payments were inconsistent with the parties' contractual regime.

Court Disposition

Appeal allowed.

Orders

  • ['Allow the appeal.' 'Set aside Orders 1 and 2 made by Emmett AJA on 16 July 2020.' "Judgment for the Builder on the Owners' claim against him." 'Judgment for the Builder against the Owners in the sum of $50,000.' "Order the Owners to pay the Builder's costs of the proceedings at first instance and on appeal."]