Stepanoski v Aslan  NSWSC 1160
On 14 October 2014, Mr and Mrs Stepanoski (the Plaintiffs/the Owners) entered into a contract titled,
“Head Contract Cost Plus (Residential) (the Cost-Plus Contract) with Mr Jamal Aslan (the Defendant/the
Builder). Sometime after 14 October 2014, the Plaintiffs and the Defendant signed another contract
described as a Home Building Contract for work over $5,000 (the Lump Sum Contract) and backdated it
to the date in which the Cost-Plus Contract was signed, with the Plaintiff’s as the Owners and the Defendant
as the Contractor.
The plaintiffs claimed damages from the defendant for alleged breaches of a building contract for the
construction of two residences on land owned by the Plaintiffs.
The parties had requested that the Court reach a conclusion as to the terms of the Building Contract,
however as there were two contracts, the question posed to the Court was whether the Lump Sum contract
was intended to replace the Cost-plus contract.
It was contended that the Lump Sum Contract was brought into existence in order to obtain funding for a
loan with Macquarie Pty Ltd (Macquarie Bank) as the Plaintiffs mortgage broker informed the Defendant
that the Cost-Plus Contract is not being recognised by the bank as it will only recognise a lump sum
contract, and for the funds to be released, the Lump Sum contract needs to be backdated.
i. Whether the parties are bound by the first contract signed, a Cost-Plus contract, or whether the
Lump Sum contract, which was signed later but backdated to the date of the Cost-Plus Contract
overrides the first contract.