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Interim Judgments

There is a little known provision of the Uniform Civil Procedure Rules that permits NSW courts to enter what are, in effect, interim judgments pending the final outcome of a case.  That provision was recently applied in a building dispute in the Supreme Court. 

A property owners had contracted with a builder to do building work.  There were disputes as to whether the contract was lump sum or “costs plus”; and as to the circumstances in which the contract (however categorised) had been ended.  It appears the court conducted a separate hearing as to the nature of the contract and had decided it was a lump sum – meaning the builder had promised to do specified work, for a single lump sum price. Not all the work had been performed when the contract ended, so both parties engaged experts to calculate what additional cost would be involved in completing the work the builder had contracted to perform.  Those experts then completed a joint report, the effect of which was the builder conceded the further cost was at least $471,244.10.

The builder also had a Cross Claim against the owners for damages he said he was entitled to because of the wrongful termination of the contract.  However his evidence in support of the Cross Claim suggested the damages were only $245,533.72.  As a matter of pure mathematics, there was an amount of $225,710.38 which, by necessary implication, the builder accepted was payable to the owners even if his Cross Claim succeeded.

The court was therefore prepared to enter judgment against the builder for that amount, while noting that the entry of the judgment did not preclude the owners from maintaining an action against the builder for a greater amount of damages in order to complete the building works.

Situations such as this are fairly rare, and will likely only arise when there are competing claims for money orders only; but the case shows that there will be at least some circumstances in which, if evidence on the damages claimed is carefully monitored, it may be possible to obtain (and potentially enforce) an interim judgment before an entire case is decided:  Stepanoski v Aslan (No. 2) [2018] NSWSC 1916.

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