Aslan v Stepanoski

Aslan v Stepanoski [2022] NSWCA 24
Supreme Court of New South Wales – Court of Appeal
Macfarlan, Gleeson and Payne JJA
Appeal against decision of New South Wales Supreme Court (NSWSC) – parties signed cost plus contract for construction of two residences and lump sum contract – appellant issued several progress claims under lump sum contract – evidence appellant was prevented from ‘coming back to the job’ and was ‘locked out’ by respondents – appellant emailed respondent notice of ceasing building works which, inter alia, stated work would not recommence until progress claim four was paid – respondents subsequently commenced proceedings for breach by appellant of lump sum contract – the appellant builder had repudiated the lump sum contract but that the respondent owners had not proved that they suffered any loss as a result of their acceptance of the repudiation – in making progress claim 4, appellant sought to hold respondents to the lump sum contract and that the claim did not constitute repudiation – appellant’s failure to resume work not categorised as repudiatory conduct – comparison of sums paid under contract with value of work completed did not reveal whether there has been overpayment under contract – even if respondents succeeded in establishing entitlement to damages as result of repudiation by appellant and subsequent acceptance of by respondents, respondents failed to establish to have suffered any loss, other than loss of rental income, claim for which not necessary to address – appeal allowed.
Aslan v Stepanoski