Aslan v Stepanoski

[2022] NSWCA 24

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Repudiation
3. › Building contract
4. › Whether builder's progress claim constituted repudiation
5. › Whether claiming payment under lump sum contract evinced intention not to be bound
6. › Whether bona fide insistence on contractual entitlement constitutes repudiation
7. › Whether failure to resume work was repudiatory where owner locked builder out of site
1. Restitution
2. › Mistake
3. › Recovery of money paid under contract
4. › Whether comparison of sums paid with value of work completed reveals overpayment under contract
5. › Whether restitutionary claims must respect contractual regimes and allocations of risk
1. Practice and Procedure
2. › Reopening case after judgment
3. › Leave to tender additional evidence on damages
4. › Whether special circumstances justified departure from ordinary rule that party bound by case conducted to judgment
5. › Whether deliberate decision to put case on limited basis precluded reopening

Quick Take

Establishing repudiation by a builder requires proof that the builder claimed amounts not contractually owed by reference to the contract's payment schedule, not merely by comparing total payments with the value of work done. Restitutionary claims for overpayment must similarly be assessed against the contractual payment regime, not by comparing payments with work value.