Aslan v Stepanoski [2022] NSWCA 24

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aslan v Stepanoski [2022] NSWCA 24 Hearing dates: 18 August 2021 and 13 December 2021 Date of orders: 25 February 2022 Decision date: 25 February 2022 Before: Macfarlan JA at [1]; Gleeson JA at [106]; Payne JA at [107] Decision: (1) Allow the appeal. (2) Set aside Orders 1 and 2 made by Emmett AJA on 16 July 2020. (3) Judgment for the Builder on the Owners' claim against him. (4) Judgment for the Builder against the Owners in the sum of $50,000. (5) Order the Owners to pay the Builder's costs of the proceedings at first instance and on appeal. Catchwords: CONTRACTS – repudiation – whether the Builder repudiated the Lump Sum Contract – whether the Builder's claim for payment under the Lump Sum Contract constituted repudiation – whether the Builder's "failure to resume work" constituted repudiatory conduct RESTITUTION – mistake – restitution of money paid by the Owners to the Builder – whether a comparison of sums paid under the Lump Sum Contract with the value of the work completed revealed whether there had been an overpayment by the Owners to the Builder CIVIL PROCEDURE – Owners sought leave to reopen case after judgment to tender additional evidence concerning loss – election had been made to claim damages on a particular basis – whether there were special circumstances that justified departure from the ordinary rule that a party is bound by the case that it conducts to judgment Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 96 Cases Cited: Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2021] NSWCA 162 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Carter v Mehmet [2021] NSWCA 286 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2013] HCA 44; (2013) 87 ALJR 1159 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36 Turner Corporation Limited (Receiver and Manager Appointed) v Austotel Pty Limited (1994) 13 BCL 378 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 Category: Principal judgment Parties: Mohammad Jamal Aslan (also known as Jim Aslan) (Appellant) Tony Stepanoski (First Respondent) Sonja Stepanoski (Second Respondent) Representation: Counsel: L Chan / K Sharma (Appellant) P Folino-Gallo (Respondents)