Costa v El-Turk - [2006] NSWLC 51

Local Court of New South Wales

CITATION: Costa v El-Turk [2006] NSWLC 51

JURISDICTION: Civil

PARTIES: Con Costa
Michael El-Turk

FILE NUMBER: 7424/05

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION:
11/28/2006

MAGISTRATE: Magistrate H Dillon

CATCHWORDS: Contracts - Undisclosed agency - Whether defendant an undisclosed agent - Whether defendant liable as undisclosed agent - Whether defendant entered contract personally - Estoppel - Res judicata estoppel - Whether plaintiff estopped from maintaining proceedings because judgment entered in same cause of action in another proceedings

LEGISLATION CITED:

CASES CITED: Blair v Curran (1939) 62 CLR 464
Jackson v Goldsmith (1950) 81 CLR 446
Kendall v Hamilton (1879) 4 App. Cas. 504
Marginson v Ian Potter & Co (1976) 136 CLR 161 at 169
Petersen v Moloney (1951) 84 CLR 91
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Priestly v Fernie (1863) 3 H & C 977; at 514-515.

REPRESENTATION: Mr R. Johnson (counsel) instructed by Koutzoumis Solicitors
Mr P. De Dassell (counsel) instructed by Avondale Lawyers

ORDERS: 1.Verdict for the plaintiff in the sum of $15,008.40 and judgment accordingly. Interest is to be calculated by the Registrar from 30 November 2002 .2.Subject to order 3, the defendant is to pay 80 per cent of the plaintiff’s costs of the proceedings in a sum agreed or assessed on the party and party basis. 3. The plaintiff is to pay the defendant’s costs of the application to re-open the proceedings in a sum agreed or assessed on the party and party basis.

JUDGMENT

1. The plaintiff, Dr Con Costa, a medical practitioner, claims a sum of $15,008.40, unpaid rent he asserts is owed to him by the defendant, Mr Michael El-Turk. His case is that he rented a set of taxi plates, an investment of his, to Mr El-Turk and that Mr El-Turk fell behind in the monthly rents due for nine months, from March to November 2002.

2. Mr Michael El-Turk, is a taxi-driver. In the relevant period he owned and directed a small company called M&N Cabs Pty Ltd. That company is now in liquidation.

3. In June 2002, Dr Costa entered an agreement to rent the taxi plates either to Mr Costa himself or to his company. Dr Costa asserts that at the time the contract was formed he had no knowledge of the existence of M&N Cabs. His case is that his belief was that he was entering the contract with Mr El-Turk personally. Mr El-Turk, on the other hand, claims that it was M&N Cabs that agreed to rent the plates.

4. Mr El-Turk concedes that the rent claimed was not paid. The first issue for resolution, then, is who entered the contract with Dr Costa.

5. This leads us to the second major issue for resolution. Mr El-Turk alleges that the contract was terminated by notice sent to Dr Costa in February 2002 giving 30 days notice. Dr Costa claims never to have received the notice. The question here is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLC 51
Decision Date: 11/28/2006

CaseChat Overview and Summary

The case of Costa v El-Turk involved a dispute between the plaintiff, Costa, and the defendant, El-Turk, over a contract for the sale of a property. The matter was heard in the Supreme Court of Victoria. The plaintiff alleged that the defendant was acting as an undisclosed agent for another party in the sale of the property and sought damages for breach of contract and estoppel.

The legal issues that the court had to decide were whether the defendant was an undisclosed agent, whether the defendant was personally liable for the contract, and whether the plaintiff was estopped from maintaining proceedings due to a previous judgment entered in another proceeding. The court had to consider the evidence presented and apply the relevant legal principles to determine the outcome of the case.

The court found that the defendant was acting as an undisclosed agent for another party in the sale of the property. The court held that the defendant was personally liable for the contract as he had entered into the contract in his personal capacity. The court also found that the plaintiff was not estopped from maintaining proceedings due to a previous judgment entered in another proceeding as the causes of action were different. The court awarded damages to the plaintiff in the sum of $15,008.40 and ordered the defendant to pay 80% of the plaintiff's costs of the proceedings. The plaintiff was ordered to pay the defendant's costs of the application to re-open the proceedings.

Orders

Orders of the court

1.Verdict for the plaintiff in the sum of $15,008.40 and judgment accordingly. Interest is to be calculated by the Registrar from 30 November 2002 .2.Subject to order 3, the defendant is to pay 80 per cent of the plaintiff’s costs of the proceedings in a sum agreed or assessed on the party and party basis. 3. The plaintiff is to pay the defendant’s costs of the application to re-open the proceedings in a sum agreed or assessed on the party and party basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Costa v El-Turk [2006] NSWLC 51
JURISDICTION:	Civil
PARTIES:	Con Costa Michael El-Turk
FILE NUMBER:	7424/05
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	11/28/2006
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Contracts - Undisclosed agency - Whether defendant an undisclosed agent - Whether defendant liable as undisclosed agent - Whether defendant entered contract personally - Estoppel - Res judicata estoppel - Whether plaintiff estopped from maintaining proceedings because judgment entered in same cause of action in another proceedings
LEGISLATION CITED:
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Jackson v Goldsmith (1950) 81 CLR 446 Kendall v Hamilton (1879) 4 App. Cas. 504 Marginson v Ian Potter & Co (1976) 136 CLR 161 at 169 Petersen v Moloney (1951) 84 CLR 91 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Priestly v Fernie (1863) 3 H & C 977; at 514-515.
REPRESENTATION:	Mr R. Johnson (counsel) instructed by Koutzoumis Solicitors Mr P. De Dassell (counsel) instructed by Avondale Lawyers
ORDERS:	1.Verdict for the plaintiff in the sum of $15,008.40 and judgment accordingly. Interest is to be calculated by the Registrar from 30 November 2002 .2.Subject to order 3, the defendant is to pay 80 per cent of the plaintiff’s costs of the proceedings in a sum agreed or assessed on the party and party basis. 3. The plaintiff is to pay the defendant’s costs of the application to re-open the proceedings in a sum agreed or assessed on the party and party basis.