Cincotta v Russo [2019] NSWSC 272

Cincotta v Russo [2019] NSWSC 272

Mr Russo executed the Contract as "Builder", represented that he had a builder's licence and that the plaintiffs would be dealing with him, and did not disclose that Bespeak was to carry out the building work. Although Bespeak's existence and ABN appeared in some documents, reasonable people in the plaintiffs' position would not have understood that Mr Russo was executing only as agent for Bespeak. Bespeak was an undisclosed principal, so the plaintiffs were entitled to judgment against Mr Russo for damages to be assessed; entry of that judgment precluded judgment against Bespeak.

Jurisdiction
Australia
Judgment Date
15 March 2019
Procedural Posture
Equity Technology and Construction List; Residential Building Contract Claim / Principal Judgment After Hearing; Damages to Be Assessed
Outcome
Judgment for the plaintiffs against the first defendant for damages to be assessed; first defendant to pay the plaintiffs' costs.
Legal Topics
['undisclosed Principal' "agent's Personal Liability" 'residential Building Contract' 'breach of Contract' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'damages to Be Assessed']
['contract Law' 'agency' 'building and Construction' 'home Building'] ['undisclosed Principal' "agent's Personal Liability" 'residential Building Contract' 'breach of Contract' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'damages to Be Assessed']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Residential Building Contract Claim / Principal Judgment After Hearing; Damages to Be Assessed

Legal Issues

  1. 1 ['Whether Mr Russo entered the residential building contract personally or only as agent for Bespeak 3 Pty Ltd as undisclosed principal.' 'Whether the plaintiffs were entitled to judgment against Mr Russo for breach of the building contract, with damages to be assessed.' 'Whether entry of judgment against Mr Russo precluded entry of judgment against Bespeak 3 Pty Ltd.']

Ratio Decidendi

Mr Russo executed the Contract as "Builder", represented that he had a builder's licence and that the plaintiffs would be dealing with him, and did not disclose that Bespeak was to carry out the building work. Although Bespeak's existence and ABN appeared in some documents, reasonable people in the plaintiffs' position would not have understood that Mr Russo was executing only as agent for Bespeak. Bespeak was an undisclosed principal, so the plaintiffs were entitled to judgment against Mr Russo for damages to be assessed; entry of that judgment precluded judgment against Bespeak.

Court Disposition

Judgment for the plaintiffs against the first defendant for damages to be assessed; first defendant to pay the plaintiffs' costs.

Orders

  • ['Judgment in favour of the plaintiffs against the first defendant for damages to be assessed.' "The first defendant is to pay the plaintiffs' costs of the proceedings to date." "The plaintiffs' legal representatives are invited to prepare short minutes to provide for the question of quantification of damages to be...