Costa v El-Turk [2006] NSWLC 51

Costa v El-Turk [2006] NSWLC 51

On the balance of probabilities, Mr El-Turk did not disclose to Dr Costa at the time the contract was made that he was acting for M&N Cabs and was therefore liable as an undisclosed agent. The alleged February 2002 termination letter was not accepted, and the contract was found to have terminated in November 2002. Although a judgment had been entered against M&N Cabs for the same unpaid rent, that judgment had been set aside, so no final and irrevocable election or merger barred the claim against Mr El-Turk. The plaintiff therefore proved entitlement to judgment for the unpaid rent.

Jurisdiction
Australia
Judgment Date
28 November 2006
Procedural Posture
Civil Claim for Unpaid Rent Under an Oral Taxi Plate Rental Agreement / Judgment After Hearing and After Plaintiff's Application to Re Open the Proceedings
Outcome
Verdict and judgment for the plaintiff.
Legal Topics
['undisclosed Agency' 'personal Liability of Agent' 'termination of Contract' 'res Judicata Estoppel' 'election Between Alternatively Liable Parties' 'merger in Judgment' 'default Judgment Set Aside']
['contract Law' 'agency' 'civil Procedure' 'estoppel' 'costs'] ['undisclosed Agency' 'personal Liability of Agent' 'termination of Contract' 'res Judicata Estoppel' 'election Between Alternatively Liable Parties' 'merger in Judgment' 'default Judgment Set Aside']

Case Brief

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Procedural Posture

Civil Claim for Unpaid Rent Under an Oral Taxi Plate Rental Agreement / Judgment After Hearing and After Plaintiff's Application to Re Open the Proceedings

Legal Issues

  1. 1 ['Whether the contract for the rental of taxi plates was entered with Michael El-Turk personally or with him as an undisclosed agent for M&N Cabs Pty Ltd.' 'Whether the contract was terminated in March 2002 or November 2002.' 'Whether the plaintiff was estopped from maintaining the proceedings because judgment had been entered against M&N Cabs in Balmain Local Court for the same unpaid rent.' "What costs orders should be made following the plaintiff's successful application to re-open the proceedings."]

Ratio Decidendi

On the balance of probabilities, Mr El-Turk did not disclose to Dr Costa at the time the contract was made that he was acting for M&N Cabs and was therefore liable as an undisclosed agent. The alleged February 2002 termination letter was not accepted, and the contract was found to have terminated in November 2002. Although a judgment had been entered against M&N Cabs for the same unpaid rent, that judgment had been set aside, so no final and irrevocable election or merger barred the claim against Mr El-Turk. The plaintiff therefore proved entitlement to judgment for the unpaid rent.

Court Disposition

Verdict and judgment for the plaintiff.

Orders

  • ['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.' "Subject to the following order, 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...