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

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

Mr Aslan had no contractual entitlement to the additional amounts claimed, except for the conceded $50,000 for Council-approved variations, because the claims were unsupported by the Lump Sum Contract and by adequate evidence. The value of work completed was $614,426.48 and Mr Aslan had been paid $1,067,094.28, making Mr and Mrs Stepanoski prima facie entitled to recover an overpayment of $452,667.80. Mr Aslan's Second Notice, stopping work and failure to resume work evinced an intention not to perform the Lump Sum Contract unless paid sums to which he had no contractual entitlement, so Mr and Mrs Stepanoski were entitled to accept his repudiation and terminate the contract. Mr Aslan was...

Jurisdiction
Australia
Judgment Date
28 October 2019
Procedural Posture
Equity; Technology and Construction List Dispute Concerning a Lump Sum Building Contract / Determination of Further Questions After Principal Reasons, With Further Directions for Costs and Orders
Outcome
The Court concluded that Mr Aslan repudiated the Lump Sum Contract and that Mr and Mrs Stepanoski were prima facie entitled to recover an overpayment of $452,667.80, but reserved final orders including costs and directed further evidence and submissions.
Legal Topics
['repudiation of Contract' 'wrongful Termination' 'overpayment Under Building Contract' 'variations' 'latent Site Conditions' 'prime Cost Items and Provisional Sums' 'delay Costs' 'expert Opinion Evidence' 'quantification of Damages']
['contract Law' 'construction Law' 'damages' 'evidence'] ['repudiation of Contract' 'wrongful Termination' 'overpayment Under Building Contract' 'variations' 'latent Site Conditions' 'prime Cost Items and Provisional Sums' 'delay Costs' 'expert Opinion Evidence' 'quantification of Damages']

Case Brief

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Procedural Posture

Equity; Technology and Construction List Dispute Concerning a Lump Sum Building Contract / Determination of Further Questions After Principal Reasons, With Further Directions for Costs and Orders

Legal Issues

  1. 1 ['The extent to which Mr Aslan had been overpaid for work completed before the Lump Sum Contract was terminated.' 'Whether the Lump Sum Contract was wrongly terminated by Mr and Mrs Stepanoski or repudiated by Mr Aslan.' 'Whether Mr Aslan was entitled to additional amounts for latent site conditions, Council-approved variations, prime cost and provisional sum adjustments, delay costs and other variations.' 'Whether Mr and Mrs Stepanoski established additional damages for loss of rent and escalation or completion costs.']

Ratio Decidendi

Mr Aslan had no contractual entitlement to the additional amounts claimed, except for the conceded $50,000 for Council-approved variations, because the claims were unsupported by the Lump Sum Contract and by adequate evidence. The value of work completed was $614,426.48 and Mr Aslan had been paid $1,067,094.28, making Mr and Mrs Stepanoski prima facie entitled to recover an overpayment of $452,667.80. Mr Aslan's Second Notice, stopping work and failure to resume work evinced an intention not to perform the Lump Sum Contract unless paid sums to which he had no contractual entitlement, so Mr and Mrs Stepanoski were entitled to accept his repudiation and terminate the contract. Mr Aslan was...

Court Disposition

The Court concluded that Mr Aslan repudiated the Lump Sum Contract and that Mr and Mrs Stepanoski were prima facie entitled to recover an overpayment of $452,667.80, but reserved final orders including costs and directed further evidence and submissions.

Orders

  • ['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.' 'Direct the defendant to respond no later than 11 November 2019 together with evidence and written submissions.' 'List the...