Midas Management v Equator Communications [2008] NSWSC 255

Midas Management v Equator Communications [2008] NSWSC 255

There was no error of law in the Magistrate's holding that Mead had ostensible (or actual) authority to bind Midas because Midas (through Farr) held Mead out as its agent; however, the Magistrate erred by unilaterally setting aside the default judgment against Mead where the principle in Petersen v Moloney required the plaintiff to elect; this and the costs order must be set aside and the matter remitted to the Local Court for reconsideration.

Jurisdiction
Australia
Judgment Date
28 March 2008
Procedural Posture
Appeal / Judgment on Appeal From Local Court to Supreme Court
Outcome
Appeal allowed; lower court judgment and orders set aside; matter remitted; costs reserved
Legal Topics
['ostensible Authority' 'delegatus Non Potest Delegare' 'agency—holding Out' 'pleadings and Notice—civil Procedure Rules' 'appeal—remitter to Local Court' 'costs—indemnity' 'default Judgment and Inconsistent Judgments']
['commercial Law' 'agency Law' 'civil Procedure'] ['ostensible Authority' 'delegatus Non Potest Delegare' 'agency—holding Out' 'pleadings and Notice—civil Procedure Rules' 'appeal—remitter to Local Court' 'costs—indemnity' 'default Judgment and Inconsistent Judgments']

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Procedural Posture

Appeal / Judgment on Appeal From Local Court to Supreme Court

Legal Issues

  1. 1 ['Whether Equator Communications adequately pleaded agency in the Local Court' 'Whether the Magistrate erred in finding Mead had authority to bind the Trust/Midas—actual or ostensible authority' 'Whether the principle of delegatus non potest delegare precluded any agency' 'Whether the Magistrate erred in setting aside default judgment against Mead and entering judgment against Midas' 'Whether the cost order on an indemnity basis was correct' 'Whether inconsistent judgments could be entered against agent and principal']

Ratio Decidendi

There was no error of law in the Magistrate's holding that Mead had ostensible (or actual) authority to bind Midas because Midas (through Farr) held Mead out as its agent; however, the Magistrate erred by unilaterally setting aside the default judgment against Mead where the principle in Petersen v Moloney required the plaintiff to elect; this and the costs order must be set aside and the matter remitted to the Local Court for reconsideration.

Court Disposition

Appeal allowed; lower court judgment and orders set aside; matter remitted; costs reserved

Orders

  • ['The appeal is allowed.' 'The judgment and orders made by his Honour Magistrate Dillon on 5 February 2007 and 20 June 2007 are set aside.' 'The matter is remitted to the Local Court to be determined according to law.' 'Costs are reserved.']